AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON , 1996
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENERGEN CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
ALABAMA 63-0757759
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
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J. DAVID WOODRUFF, JR.
ENERGEN CORPORATION
2101 SIXTH AVENUE NORTH
BIRMINGHAM, ALABAMA 35203
(205) 326-2700
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF
AGENT FOR SERVICE)
THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
JOHN K. MOLEN DAVID P. FALCK
BRADLEY, ARANT, ROSE & WHITE WINTHROP, STIMSON, PUTNAM & ROBERTS
2001 PARK PLACE, SUITE 1400 ONE BATTERY PARK PLAZA
BIRMINGHAM, ALABAMA 35203 NEW YORK, NEW YORK 10004-1490
(205) 521-8238 (212) 858-1438
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after this Registration Statement becomes effective as the Registrant may determine.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [X]
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED PRICE(1) REGISTRATION FEE(2)
- --------------------------------------------------------------------------------
Debt Securities; Common Stock........... $250,000,000 $86,207
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED , 1996
PROSPECTUS
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$250,000,000
ENERGEN CORPORATION
DEBT SECURITIES
COMMON STOCK
Energen Corporation (the "Corporation") may offer from time to time up to an aggregate amount of $250,000,000 (or the equivalent thereof if any of the securities offered hereby are denominated in a currency, currency unit or composite currency other than the U.S. dollar) of (i) its notes, debentures or other evidences of unsecured indebtedness (the "Debt Securities") in one or more currencies on terms to be determined at the time of sale and (ii) shares of its common stock, par value $.01 per share (the "Common Stock"), on terms to be determined at the time of sale. The Common Stock is referred to herein as the "Equity Securities," and the Debt Securities and the Equity Securities are collectively referred to herein as the "Offered Securities." The Offered Securities may be sold for U.S. Dollars, foreign currencies or foreign currency units, and the principal of or any interest on the Debt Securities may be payable in U.S. Dollars, foreign currencies or foreign currency units. The Debt Securities will rank equally with all other outstanding unsecured senior indebtedness of the Corporation. The Debt Securities may be issued in one or more series with the same or various maturities, at par or with an original issue discount. The Debt Securities of any series may be in registered or bearer form and may be represented by a single global security registered in the name of a securities depositary.
When Debt Securities are offered, a supplement to this Prospectus (the "Prospectus Supplement") will set forth the specific terms of such Debt Securities, including, where applicable, the specific designation, aggregate principal amount, authorized denominations, currency or currency unit of denomination and payment, maturity, interest rate (which may be fixed or variable) and time of payment of interest, if any, any terms for redemption (which either may be at the option of the Corporation or the holder), any terms for sinking fund payments, and information about any listing on a securities exchange of such Debt Securities. When Equity Securities are offered, a Prospectus Supplement will set forth the aggregate number of shares offered. Any Prospectus Supplement will also set forth the initial public offering price, the net proceeds to the Corporation and other specific terms of the Offered Securities.
The Offered Securities may be sold to or through underwriters, dealers or agents, or directly to purchasers. If any agents of the Corporation or any underwriters are involved in the sale of the Offered Securities, their names, and any applicable fee, commission or discount arrangements with them will be set forth in any applicable Prospectus Supplement. See "Plan of Distribution." No Offered Securities may be sold without delivery of a Prospectus Supplement describing such series or issue of Offered Securities and the method and the terms thereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1996.
AVAILABLE INFORMATION
The Corporation is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy and information
statements and other information filed by the Corporation can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional
offices at 7 World Trade Center, Suite 1300, New York, New York 10048 and 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material also can be obtained at prescribed rates from the Public Reference
Section of the Commission at its principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission also maintains a web site
(http://www.sec.gov) that contains reports, proxy and information statements
and other information regarding reporting companies, including the
Corporation. The shares of Common Stock of the Corporation are listed on the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
Reports, proxy and information statements and other information concerning the
Corporation can be inspected at the offices of that exchange.
The Corporation has filed a Registration Statement on Form S-3 (herein, together with all exhibits and amendments thereto, called the "Registration Statement") with the Commission under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the Offered Securities. This Prospectus does not contain all of the information included in the Registration Statement and the exhibits and schedules thereto. For further information with respect to the Corporation and the Offered Securities, reference is hereby made to the Registration Statement and the exhibits and schedules thereto. The registration statement may be inspected without charge at the offices of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies thereof may be obtained from the Public Reference Section of the Commission at such address at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Commission are incorporated by reference in the Prospectus:
(a) The Corporation's Annual Report on Form 10-K for the year ended September 30, 1995 filed pursuant to Section 13(a) of the Exchange Act;
(b) The Corporation's Quarterly Reports on Form 10-Q for the quarters ended December 31, 1995, March 31, 1996, and June 30, 1996 filed pursuant to Section 13(a) of the Exchange Act;
(c) The Corporation's Current Report on Form 8-K dated August 23, 1996 filed pursuant to Section 13(a) of the Exchange Act;
(d) The description of the Corporation's preferred stock purchase rights contained in, and the Rights Agreement filed as an exhibit to, the Corporation's Registration Statement on Form 8-A, as amended, File No. 1- 7810, dated August 8, 1988.
All documents filed by the Corporation pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the securities offered hereby shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded, for purposes of this Prospectus, to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or replaces such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus.
The information relating to the Company contained in this Prospectus summarizes, is based upon, or refers to, information and financial statements contained in one or more of the documents incorporated by reference in
this Prospectus; accordingly, such information contained herein is qualified in its entirety by reference to such incorporated documents and should be read in conjunction therewith.
The Corporation will provide without charge to each person, including any beneficial owner, to whom a copy of this Prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the information that has been incorporated by reference in the Prospectus (not including exhibits to the information that is incorporated by reference in the Prospectus unless such exhibits are specifically incorporated by reference into the information that the Prospectus incorporates). Requests for such copies should be addressed to Energen Corporation, Investor Relations Department, 2101 Sixth Avenue North, Birmingham, Alabama 35203 (telephone number (800) 654-3206 or (205) 326-2634).
ENERGEN CORPORATION
The Corporation is a diversified energy holding company engaged primarily in natural gas distribution and the exploration and production of natural gas and oil. The Corporation's principal utility subsidiary, Alabama Gas Corporation ("Alagasco"), is the largest natural gas distribution utility in the State of Alabama. Alagasco purchases natural gas through interstate and intrastate suppliers and distributes the purchased gas through its distribution facilities for sale to residential, commercial, industrial and other end-users of natural gas. Alagasco also provides distribution services for selected customers. The Corporation's oil and gas exploration, production and development activities are conducted by its subsidiary, Taurus Exploration, Inc. ("Taurus"), and involve the exploration for and the production of natural gas and oil from both conventional and nonconventional reservoirs. Taurus also seeks to increase its reserves of natural gas and oil through the acquisition of such properties.
The Corporation's executive offices are located at 2101 Sixth Avenue North, Birmingham, Alabama 35203 and its telephone number is (205) 326-2700.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following are the consolidated ratios of earnings to fixed charges for each of the periods indicated:
NINE MONTHS
ENDED
YEAR ENDED SEPTEMBER 30, JUNE 30,
------------------------ -----------
1995 1994 1993 1992 1991 1996
---- ---- ---- ---- ---- -----------
Ratio of Earnings to Fixed Charges.... 2.95 3.68 3.01 2.52 2.28 4.47
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For purposes of computing the consolidated ratio, earnings represent net income applicable to Common Stock, plus applicable income taxes and fixed charges. Fixed charges represent interest expense, capitalized interest and amortization of debt expense.
USE OF PROCEEDS
Except as may otherwise be described or referred to in a Prospectus Supplement, the Company intends to use the net proceeds from the sale of the Offered Securities for general corporate purposes, including the Corporation's working capital needs, the funding of investments in, or extensions of credit to, its subsidiaries, the possible acquisition of other corporations or their assets or liabilities, including the acquisition of natural gas and oil properties, the reduction of short-term or other outstanding indebtedness and the funding of Alagasco's share of supplier refunds due customers in accordance with the settlement of certain rate cases between Southern Natural Gas Company and FERC. Pending such use, the Corporation may temporarily invest the net proceeds in investment grade securities. The Corporation may, from time to time, engage in additional capital financings of a character and in amounts to be determined by the Corporation in light of its need at such time or times and in light of prevailing market conditions.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth certain general terms and provisions of the Debt Securities to which any applicable Prospectus Supplement may relate. The particular terms of the Debt Securities offered by any applicable Prospectus Supplement (the "Offered Debt Securities") and the extent, if any, to which such general provisions may apply to the Debt Securities so offered will be described in the Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities will be issued under an Indenture (the "Indenture") between the Corporation and The Bank of New York (the "Trustee"). A copy of the Indenture is filed as an exhibit to this Registration Statement. The following summaries of the Debt Securities and the Indenture do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Indenture, including the applicable definitions therein of certain terms used in this Prospectus. All capitalized terms not defined in this Prospectus shall have the definitions ascribed to them in the Indenture. Copies of the Indenture are available for inspection during normal business hours at the principal office of the Corporation or at the corporate trust office of the Trustee.
GENERAL
The Debt Securities will be direct, unsecured obligations of the Corporation and will rank pari passu with all outstanding unsecured senior indebtedness of the Corporation. The Indenture does not limit the aggregate principal amount of Debt Securities that may be issued thereunder and provides that Debt Securities may be issued thereunder from time to time in one or more series. All securities issued under the Indenture will rank equally and ratably with all other securities to be issued under such Indenture.
The Debt Securities will be obligations exclusively of the Corporation. Since substantially all of the operations of the Corporation are conducted through its subsidiaries, principally Alagasco and Taurus, the Corporation's cash flow and consequently its ability to service debt is dependent upon the cash flow of its subsidiaries and the payment of funds by those subsidiaries in the form of dividends.
The Prospectus Supplement and any related Pricing Supplement will describe certain terms of the Offered Debt Securities, including: (1) the title of the Offered Debt Securities; (2) any limit on the aggregate principal amount of the Offered Debt Securities; (3) the date or dates on which the principal of the Offered Debt Securities is payable; (4) the rate or rates per annum (which may be fixed or variable) at which the Offered Debt Securities will bear interest, if any, or any method by which such rate or rates shall be determined, and the date or dates
from which such interest will accrue; (5) the date or dates on which interest,
if any, on the Offered Debt Securities will be payable and the Regular Record
Dates for any such Interest Payment Dates; (6) each office or agency where the
principal of, and premium, if any, and any interest on the Offered Debt
Securities will be payable and may be surrendered for registration of transfer
or exchange; (7) the period or periods within which, the price or prices at
which, and the terms and conditions upon which the Offered Debt Securities may
be redeemed, in whole or in part, at the option of the Corporation; (8) the
obligation, if any, of the Corporation to redeem or purchase the Offered Debt
Securities pursuant to any sinking fund or similar provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which the Offered Debt Securities
will be redeemed or purchased, in whole or in part, pursuant to any such
obligation; (9) whether the Offered Debt Securities are to be issued in whole
or in part in the form of one or more global notes, and, if so, the identity of
the depositary for such global notes and the terms and conditions, if any, on
which interests in such global notes may be exchanged for the individual
securities represented thereby; (10) whether the Offered Debt Securities are to
be issued with original issue discount within the meaning of section 1273(a) of
the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
thereunder and the amount of such discount; (11) the obligations or instruments
which shall be considered to be Eligible Obligations in respect of Offered Debt
Securities denominated in any currency other than United States Dollars or in a
composite currency, and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of Offered Debt
Securities after the satisfaction and discharge thereof; (12) any provisions
for payment of additional amounts for taxes, and any provisions for redemption
in the event the Corporation must comply with withholding tax or other tax
reporting requirements in respect of an Offered Debt Security other than a
Floating Rate Security ("Affected Security") or must pay such additional
amounts in respect of any Offered Debt Security; (13) any index used to
determine the amount of payment of principal of, and premium, if any, and any
interest on the Offered Debt Securities; (14) the applicable Overdue Rate, if
any; (15) any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to the Offered Debt Securities;
(16) if the principal of or premium, if any, or interest, if any, on the
Offered Debt Securities are to be payable, at the election of the Corporation
or a Holder thereof, in a coin or currency other than that in which the Debt
Securities are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made; (17) the
currency or currencies, including composite currencies, in which payment of the
principal of and premium, if any, and interest, if any, on the Offered Debt
Securities shall be payable (if other than the currency of the United States);
(18) if the principal of or premium, if any, or interest on the Offered Debt
Securities are to be payable, or are to be payable at the election of the
Corporation or a Holder thereof, in securities or other property, the type and
amount of such securities or other property, or the method by which such amount
shall be determined, and the period or periods within which, and the terms and
conditions upon which, any such election may be made; (19) the terms, if any,
pursuant to which the Offered Debt Securities may be converted into or
exchanged for shares of capital stock or other securities of the Corporation;
(20) the obligations or instruments, if any, which shall be considered to be
Eligible Obligations (as defined herein) in respect of the Offered Debt
Securities denominated in any currency other than United States Dollars or in a
composite currency, and any additional or alternative provisions for the
reinstatement of the Corporation's indebtedness in respect of such Debt
Securities after the satisfaction and discharge thereof; and (21) any other
terms and provisions of the Offered Debt Securities which are not inconsistent
with the Indenture.
Unless otherwise provided in the Prospectus Supplement or a Pricing Supplement, the Debt Securities will be issued only in fully registered form, without coupons, in denominations of $1,000 or any integral multiple thereof.
Debt Securities may be issued as Discount Securities to be sold at a
substantial discount below their principal amount. Discount Securities mean any
Debt Securities issued with "original issue discount" within the meaning of
Section 1273(a) of the Code and the regulations thereunder. Special United
States income tax and other considerations applicable to Discount Securities
will be described in any applicable Prospectus Supplement relating thereto.
Discount Securities may provide for the declaration of acceleration of the
Maturity of an amount less than the principal amount thereof upon the
occurrence of an Event of Default and the continuation thereof.
The Indenture provides that all Debt Securities of any one series need not be issued at the same time and that the Corporation may, from time to time, issue additional Debt Securities of a previously issued series. In addition, the Indenture provides that the Corporation may issue Debt Securities with terms different from those of any other series of Debt Securities and, within a series of Debt Securities, terms (such as interest rate or manner in which interest is calculated, original issue date, redemption provisions and maturity date) may differ.
CERTAIN CONDITIONS FOR ISSUANCE OF ADDITIONAL INDEBTEDNESS
Under the indentures relating to its Series 1993 Notes due annually beginning March 1, 1996 to March 1, 2008 (the "1993 Notes") and 8% Debentures due 2007 (the "8% Debentures"), the Corporation is not permitted to create or issue any indebtedness, other than indebtedness maturing on demand or within one year, which ranks prior to or on a parity with the 1993 Notes or the 8% Debentures in right of payment unless immediately thereafter, and after giving effect thereto and to the application of the proceeds thereof, Consolidated Net Utility Fixed Assets (defined generally as the aggregate value of all the physical property owned by the Corporation and its consolidated subsidiaries used or useful in the business of furnishing or distributing gas service, less accumulated depreciation) shall be at least equal to Consolidated Funded Indebtedness (defined generally as all outstanding indebtedness of the Corporation and its consolidated subsidiaries, other than indebtedness maturing on demand or within one year).
Pursuant to Section 234 of the Constitution of Alabama of 1901, the bonded indebtedness of Alabama corporations may not be increased without the consent of shareholders. The Corporation currently has shareholder approval to issue bonded indebtedness in an amount not exceeding, when taken together with then outstanding bonded indebtedness, $75 million, and may not issue more than such amount without the further consent of shareholders. Based upon such requirement, the Corporation may presently issue an additional $40 million of bonded indebtedness. The Corporation intends to request an increase in such amount at the next annual meeting of shareholders in January 1997.
GLOBAL NOTES
If the Prospectus Supplement so provides, the Offered Debt Securities of a series may be issued in whole or in part in the form of one or more Global Notes that will be deposited with or on behalf of a depositary located in the United States identified in any applicable Prospectus Supplement relating to such series. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability to transfer beneficial interests in a Global Note. The specific terms of the depositary arrangement with respect to any Offered Debt Securities of a series will be described in any applicable Prospectus Supplement relating to such series.
PAYMENT AND PAYING AGENTS
Except as may be provided in the applicable Prospectus Supplement, interest, if any, on each Debt Security payable on each Interest Payment Date will be paid to the person in whose name such Debt Security is registered as of the close of business on the Regular Record Date relating to such Interest Payment Date. However, if there has been a default in the payment of interest on any Debt Security, such defaulted interest may be payable to the Holder of such Debt Security as of the close of business on a date selected by the Trustee not more than 15 days and not less than 10 days prior to the date proposed by the Corporation for payment of such defaulted interest.
Unless otherwise indicated in any applicable Prospectus Supplement, principal of, and premium and interest, if any, on the Debt Securities will be payable at the office of the Trustee designated for such purpose or at any paying agent maintained by the Corporation for such purpose, except that at the option of the Corporation payment of any interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or (ii) by wire transfer to an account maintained by the Person entitled thereto. The Corporation may appoint one or more Paying Agents and may remove any Paying Agent, all in its discretion.
The transfer of the Debt Securities may be registered, and the Debt Securities may be exchanged for other Debt Securities of authorized denominations and of like tenor and aggregate principal amount at the office of the Trustee designated for such purpose or at any paying agency maintained by the Corporation for such purpose. The Corporation may appoint one or more additional security registrars or transfer agents and may remove any security registrar or transfer agent, all in its discretion. The applicable Prospectus Supplement will identify any additional security registrar or transfer agent appointed.
No service charge will be made for any registration of transfer or exchange of the Debt Securities, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The Corporation will not be required (a) to issue, register the transfer of or exchange Debt Securities during the period of 15 days prior to giving any notice of redemption or (b) to issue, register the transfer of or exchange any Debt Security selected for redemption in whole or in part, except the unredeemed portion of any Debt Security being redeemed in part.
All moneys paid by the Corporation to the Trustee or a Paying Agent for the payment of principal of, and premium, if any, and any interest on any Debt Securities which remain unclaimed at the end of two years after such principal, premium or interest shall become due and payable will be repaid, subject to applicable laws of escheat, to the Corporation, and the Holder of such Debt Securities will thereafter look only to the Corporation for payment thereof.
REDEMPTION
Any terms for the optional or mandatory redemption of the Offered Debt Securities will be set forth in the applicable Prospectus Supplement. In accordance with the terms of the Indenture, Debt Securities will be redeemable only upon notice, by mail, not less than 30 nor more than 60 days prior to the date fixed for redemption and, if less than all of the Debt Securities of any series are to be redeemed, the particular Debt Securities will be selected by the Security Registrar by such method as the Trustee deems fair and appropriate.
Any notice of optional redemption may state that such redemption shall be conditional upon the receipt by the Trustee, on or prior to the date fixed for such redemption, of money sufficient to pay the principal of and premium and interest, if any, on such Debt Securities and that if such money has not been so received, such notice will be of no force or effect and the Corporation will not be required to redeem such Debt Securities.
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to the
Debt Securities of a series: (a) failure to pay any interest on any Debt
Security of that series within 30 days after the same becomes due and payable;
(b) failure to pay the principal of or premium, if any, on any Debt Security of
that series within three business days after the same becomes due and payable;
(c) failure to perform, or breach of, any other covenant or warranty of the
Corporation in the Indenture (other than a covenant or warranty included in the
Indenture solely for the benefit of one or more series of Debt Securities other
than such series), continued for 90 days after written notice by the Trustee to
the Corporation or by the Holders of at least 25% in principal amount of all
Outstanding Debt Securities of such series to the Corporation and the Trustee
as provided in the Indenture; (d) certain events involving bankruptcy,
insolvency, conservatorship, receivership or reorganization of the Corporation
or Alagasco or Taurus, whether voluntary or involuntary; (e) a default under
any other indebtedness of the Corporation or Alagasco or Taurus or instrument
under which there may be issued or by which there may be secured or evidenced
any indebtedness of the Corporation or Alagasco or Taurus, in each case
aggregating in excess of $10,000,000, which default constitutes a failure to
pay any portion of the principal of such indebtedness when due or results in
the acceleration of the maturity of such indebtedness, unless within a period
of 10 days after written notice of such default has been given to the
Corporation by the Trustee or to the Corporation and
the Trustee by the Holders of at least 10% in principal amount of the Outstanding Debt Securities of any series, such indebtedness has been discharged or such acceleration has been rescinded or annulled; and (f) any other Event of Default provided for with respect to Debt Securities of that series.
REMEDIES
Except as described in (e) above, no Event of Default with respect to the Debt Securities of one series necessarily constitutes an Event of Default with respect to the Debt Securities of any other series issued under the Indenture.
If any Event of Default with respect to the Debt Securities of any series occurs and is continuing, either the Trustee or the Holders of at least 33% in aggregate principal amount of all the Outstanding Debt Securities of that series may declare the principal amount of all the Outstanding Debt Securities of that series to be due and payable immediately; provided, however, that if an Event of Default occurs and is continuing with respect to more than one series of Debt Securities, the Trustee or the Holders of not less than 33% in aggregate principal amount of the Outstanding Debt Securities of all such series, considered as one class, may make such declaration of acceleration and not the Holders of the Debt Securities of any one of such series.
The Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of each series may, on behalf of all Holders of the Debt Securities of that series, waive any past default and its consequences under the Indenture with respect to the Debt Securities of that series, except a default in the payment of principal or premium or interest, if any, on any Debt Security of that series, or in respect of a provision of the Indenture which cannot be amended or modified without the consent of the Holder of each Outstanding Debt Security of the series affected.
At any time after the declaration of acceleration with respect to Debt Securities of any series has been made, but before a judgment or decree for the payment of money due has been obtained, the Event or Events of Default giving rise to such declaration of acceleration shall, without further act, be deemed to have been waived, and such declaration and its consequences shall, without further act, be deemed to have been rescinded and annulled if (a) the Corporation has paid or deposited with the Trustee a sum sufficient to pay (1) all overdue interest on all of such Debt Securities; (2) the principal of and premium, if any, on any of such Debt Securities which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Debt Securities; (3) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Debt Securities; (4) all amounts due to the Trustee under the Indenture; and (b) any other Events of Default with respect to the Debt Securities of such series, other than the nonpayment of the principal of such Debt Securities which has become due solely by such declaration of acceleration, have been cured or waived as provided in the Indenture.
MISCELLANEOUS RIGHTS AND OBLIGATIONS OF TRUSTEE
The Indenture provides that, subject to the duty of the Trustee during the continuance of an Event of Default to act with the required standard of care, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee reasonable security or indemnity. Subject to such provisions for the indemnification of the Trustee and subject to certain other limitations, the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Debt Securities of that series; provided, however, that if an Event of Default occurs and is continuing with respect to more than one series of Debt Securities, the Holders of a majority in aggregate principal amount of the outstanding Debt Securities of all such series, considered as one class, will have the right to make such direction, and not the Holders of the Debt Securities of any one of such series; and provided,
further, that (a) such direction will not be in conflict with any rule of law or with the Indenture and would not involve the Trustee in personal liability in circumstances where reasonable indemnity would not, in the Trustee's sole discretion, be adequate, (b) the Trustee shall not have determined that the action so directed would be unjustly prejudicial to the Holders not taking part in such direction and, (c) the Trustee may take any other action it deems proper which is not inconsistent with such direction. The right of a Holder of any Debt Security of such series to institute a proceeding with respect to the Indenture is subject to certain conditions precedent, but each Holder has an absolute right to receive payment of principal and premium and interest, if any, when due and to institute suit for the enforcement of any such payment. The Indenture provides that the Trustee, within 90 days after the occurrence of any default thereunder with respect to the Debt Securities of a series, is required to give the Holders of the Debt Securities of such series notice of any default known to it, unless cured or waived; provided, however, that, except in the case of a default in the payment of principal of or premium or interest, if any, on any Debt Securities of such series, the Trustee may withhold such notice if the Trustee determines that it is in the interest of such Holders to do so; and, provided, further, that in the case of an Event of Default of the character specified above in clause (c) under "Events of Default," no such notice shall be given to such Holders until at least 75 days after the occurrence thereof.
The Corporation is required to furnish to the Trustee annually a statement as to the performance by the Corporation of certain of its obligations under the Indenture and as to any default in such performance. The Corporation is also required to notify the Trustee of any Event of Default within 10 days after certain of its officers obtain actual knowledge thereof.
MODIFICATION, WAIVER AND AMENDMENT
Certain modifications and amendments of the Indenture may be made by the
Corporation and the Trustee without the consent of the Holders, including those
which: (a) evidence the assumption by any successor to the Corporation of the
Corporation's obligations under the Indenture or with respect to the Debt
Securities; (b) add to the covenants of or surrender any rights of the
Corporation under the Indenture; (c) add any Events of Default, in addition to
those specified in the Indenture, with respect to all or any series of
Outstanding Debt Securities; (d) change or eliminate any provision of the
Indenture or add any new provision to the Indenture; provided, however, that if
such change, elimination or addition will materially and adversely affect the
interests of Holders of Debt Securities of any series, such change, elimination
or addition will become effective with respect to such series only when there
is no Debt Security of such series remaining outstanding under the Indenture;
(e) provide collateral security for the Debt Securities; (f) establish the form
or terms of Debt Securities of any series; (g) evidence the appointment of a
successor Trustee with respect to the Debt Securities of one or more series and
to add to or change any of the provisions of the Indenture as shall be
necessary to provide for or facilitate the administration of the trusts under
the Indenture by more than one trustee; (h) provide for the procedures required
to permit the utilization of a noncertificated system of registration for all
or any series of Debt Securities; (i) subject to certain conditions, change the
place where Debt Securities may be transferred, exchanged or paid; or (j) cure
any ambiguity or inconsistency or make any other provisions with respect to
matters and questions arising under the Indenture, provided such provisions
shall not adversely affect the interests of the Holders of Debt Securities of
any series in any material respect.
Without limiting the generality of the foregoing, if the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), is amended after the date of the Indenture to require changes to the Indenture or the incorporation therein of additional provisions or permit changes to, or the elimination of, provisions which at the date of the Indenture are required by the Trust Indenture Act to be contained in the Indenture, the Corporation and the Trustee may, without the consent of any Holders, enter into one or more supplemental indentures to effect or reflect any such change, incorporation or elimination.
Modifications of and amendments to the Indenture may be made by the Corporation and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Debt Securities of each series affected by such modification or amendment voting separately; provided, however, that
no such modification or amendment may, without the consent of the Holder of
each Outstanding Debt Security affected thereby, (a) change the Stated Maturity
of the principal of, or any installment of principal or interest on, any Debt
Security; (b) reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon redemption thereof; (c) reduce the amount
of the principal of Discounted Securities that would be due and payable upon a
declaration of acceleration of the maturity; (d) change in the coin or currency
in which any Debt Security or any premium or the interest thereon is payable;
(e) impair the right to institute suit for the enforcement of any such payment;
(f) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the consent of whose Holders is required for modification or
amendment of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults; (g) reduce the requirements
for quorum or voting; or (h) modify the provisions of the Indenture relating to
the modification of the Indenture, or the circumstances under which the Holders
may waive past defaults by and certain covenants of the Corporation except to
increase the percentages in principal amount referred to therein.
The Holders of not less than a majority in aggregate principal amount of the Outstanding Debt Securities of all series with respect to which a certain covenant or restriction has been specified, may, on behalf of all Holders of Debt Securities waive compliance by the Corporation with certain covenants of the Indenture. The Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of any series may, on behalf of all Holders of Debt Securities of that series (a) waive any past default under the Indenture with respect to Debt Securities of that series, except a default (i) in the payment of principal, premium, if any, or interest on any Debt Security, or (ii) in respect of a covenant or provision that cannot be modified or amended without the consent of the Holder of each Outstanding Debt Security affected thereby, and (b) waive any Event of Default resulting in acceleration of such Debt Securities in specified circumstances.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that the Corporation shall not consolidate with or merge into any other corporation, association, company, joint stock company, limited liability company or business trust (the "Successor Corporation") or convey, transfer or lease its properties and assets substantially as an entity to any Person unless (i) the Successor Corporation into which the Corporation is merged or into which it is consolidated or the Person to which substantially all of the Corporation's assets or properties are conveyed, transferred or leased, is a Person organized under the laws of the United States, any state thereof or the District of Columbia, and expressly assumes by means of a supplemental indenture the due and punctual payment of the principal (and premium, if any) and interest on all the Outstanding Debt Securities and the performance of every covenant of the Corporation in the Indenture; (ii) upon the occurrence of such a transaction, treating any indebtedness for borrowed money which becomes an obligation of the Corporation as a result of such transaction as having been incurred by the Corporation at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall occur or be continuing; and (iii) the Corporation or the Successor Corporation or Person delivers to the Trustee an Officers' Certificate and an Opinion of Counsel stating that the consolidation, merger, conveyance, transfer or lease and the supplemental indenture complies with the Indenture and all conditions precedent for such transaction in the Indenture have been complied with.
CERTAIN COVENANTS
MAINTENANCE OF PROPERTY. The Corporation will cause (or, with respect to property owned in common with others, make reasonable effort to cause) all its properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order and will cause (or with respect to property owned in common with others, make reasonable effort to cause) to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as, in the judgment of the Corporation, may be necessary so that the business carried on in connection therewith may be properly conducted; provided, however, that the foregoing shall not prevent the Corporation from discontinuing, or causing the discontinuance of, the
operation and maintenance of any of its properties if such discontinuance, in he judgment of the Corporation, (a) is desirable in the conduct of its business and (b) will not adversely affect the interests of the Holders of Debt Securities of any series in any material respect.
CORPORATE EXISTENCE. Subject to the rights of the Corporation described under "Consolidation, Merger and Sale of Assets," the Corporation will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and rights (charter and statutory) and franchises of the Corporation; provided, however, that the Corporation shall not be required to preserve any such right or franchise if, in the judgment of the Corporation (a) preservation thereof is no longer desirable in the conduct of the business of the Corporation and (b) the failure to preserve any such right or franchise will not adversely affect the interests of the Holders of Debt Securities of any series in any material respect.
RESTRICTION ON LIENS. The Corporation will not create, assume, incur or suffer to exist any mortgage, lien, pledge, charge or encumbrance of any kind (other than "Excepted Encumbrances") upon property of the Corporation (other than "Excepted Property") to secure indebtedness without effectively providing that the Debt Securities shall be secured equally and ratably with the indebtedness secured by such mortgage, lien, pledge, charge or encumbrance. Subject to the next succeeding sentence, the foregoing restriction shall not apply to (1) pledging of any assets of the Corporation as security for payment of taxes or other similar charges in connection with a good faith contest by the Corporation as to its liability for such payment; (2) pledging of any assets of the Corporation to secure a stay or discharge in connection with a legal proceeding in which the Corporation or a subsidiary is a party or for the purpose of obtaining insurance coverage or other surety obligations providing for securing such stay or discharge in the event such stay or discharge should be required; (3) making deposits or providing security in connection with tenders, redemptions, contracts or leases to which the Corporation is a party or deposits for the purpose of terminating obligations under an indenture; (4) pledging of assets in connection with the incurrence of indebtedness in aggregate principal amount not exceeding 5% of the assets of the Corporation as presented in the financial statements of the Corporation contained in the most recently filed report on Form 10-K or 10-Q (or successor forms thereto) filed with the Commission at the time of such pledge; (5) liens, pledges, security interests or other encumbrances on property, stock or indebtedness of any corporation existing at the time such corporation becomes a subsidiary of or is merged into the Corporation, or existing at the time of acquisition of such property or stock by the Corporation; (6) incurring liens, licenses, pledges, security interests or other encumbrances to secure payment of all or a part of the price of acquisition, construction or improvement of property or stock acquired by the Corporation or to secure any indebtedness incurred by the Corporation prior to, at the time of, or within 180 days after the later of the acquisition or completion of construction where the secured debt is incurred for the purpose of financing all or any part of the purchase price of such property or construction or improvements thereon; (7) liens, pledges, security interests or other encumbrances on property of the Corporation created in favor of a government or any political subdivision or instrumentality thereof, to secure partial progress, installment, advance or other payments pursuant to any contract or statute or to secure any indebtedness or other obligation incurred for the purpose of financing all or any part of the purchase price or the cost of construction of property subject to the encumbrance; or (8) any extension, renewal or replacement of any lien or encumbrance referred to above, provided that the principal amount of the indebtedness secured thereby is not increased and the lien or security interest securing the indebtedness is not extended to cover additional property. Notwithstanding the foregoing, in no event shall the Corporation create, assume, incur or suffer to exist pursuant to the foregoing clauses (1) and (3)-(8) any mortgage, lien, pledge, charge or encumbrance on the capital stock of either of Alagasco or Taurus directly or indirectly owned by the Corporation. The term "Excepted Encumbrances" means liens for taxes, assessments or governmental charges not delinquent; liens securing indebtedness existing in or relating to real estate acquired for right-of-way purposes; easements or reservations in property of the Company by statute or ordinance; liens and charges incidental to current construction activities; obligations or duties created or imposed by municipalities or other public authority affecting property of the Company; rights reserved to or vested in any municipality or public authority to control or regulate the Company or use of its property; irregularities or deficiencies of title with respect to rights-of-way; and leases made or existing in the ordinary course of business of the Company. The term "Excepted Property" generally means certain property or equipment of the
Corporation used in the ordinary course of business, including current assets, vehicles, certain inventories and equipment, as more particularly defined in the Indenture, and excludes capital stock issued by Alagasco and Taurus.
RESTRICTION ON SALE-LEASEBACK TRANSACTIONS. The Corporation will not enter into any arrangement providing for the lease to the Corporation of any property of the Corporation (except for temporary leases for a term, including any renewal thereof, of not more than three years), which has been or is to be sold or transferred by the Corporation to the lessor unless the proceeds of such sale are at least equal to the fair value of such property and either: (i) the Corporation would be entitled, under the sub-caption "Restriction on Liens," to create, assume, incur or suffer to exist a mortgage, lien, pledge, charge or encumbrance to secure indebtedness on the property to be leased without equally and ratably securing the Offered Securities; or (ii) the Corporation shall, or covenants that it will, within 120 days of the effective date of any such arrangement (or in the case of clause (a) below, within six months thereafter pursuant to a commitment entered into within such 120 day period), apply an amount not less than the fair value of such property to any one or more of (a) the optional redemption of, or the purchase and retirement of, the Debt Securities, or (b) the payment or other retirement of Funded Debt (as defined therein) incurred or assumed by the Corporation which ranks pari passu with the Debt Securities (other than Funded Debt owned by the Corporation), or (c) the purchase at not more than the fair value of property by the Corporation (other than property of the Corporation involved in such sale).
SATISFACTION AND DISCHARGE; DEFEASANCE
The Indenture, with respect to any and all series of Debt Securities (except for certain specified surviving obligations) will be discharged and canceled upon the satisfaction of certain conditions, including: (a) the payment in full of the principal of (and premium, if any) and interest on all series of the Debt Securities or the deemed payment in full of such Debt Securities, as described below; (b) the payment by the Corporation of all other sums required under the Indenture; and (c) the delivery of a certificate by the Corporation to the Trustee stating that all conditions precedent relating to the satisfaction and discharge of the Indenture have been complied with.
In addition, the Corporation may at any time (i) terminate certain of its obligations under the Indenture with respect to Debt Securities of any series ("legal defeasance") or (ii) terminate its obligations under certain covenants set forth in the Indenture with respect to Debt Securities of any series, including the provisions described above under "Certain Covenants--Restriction on Liens," "--Restriction on Sale-Leaseback Transactions" and "Consolidation, Merger and Sale of Assets" (after which any omission to comply with such obligations shall not constitute a Default with respect to such Debt Securities) ("covenant defeasance"). To exercise either legal defeasance or covenant defeasance, the Corporation must irrevocably deposit in trust with the Trustee, for the benefit of the Holders, cash or Eligible Obligations, or a combination thereof, in such amounts as will be sufficient to pay the principal of and premium and interest, if any, due and to become due on the Debt Securities of such series on or prior to their redemption or maturity date in accordance with the terms of the Indenture and such Debt Securities; provided that such money or the proceeds of such Eligible Obligations shall either (i) have been on deposit with the Trustee for a period of at least 90 days, or (ii) the Trustee shall have received an Opinion of Counsel to the effect that payments to Holders with such moneys as proceeds are not recoverable as a preference under any applicable United States federal or state law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or relief of debtors. The Corporation must also comply with certain other conditions, including the delivery of an opinion of counsel to the effect that the holders of such Debt Securities will not realize income, gain or loss for Federal income tax purposes as a result of such defeasance but will realize income, gain or loss on the Debt Securities, including payments of interest thereon, in the same manner and at the same times as would have been the case if such defeasance had not occurred. In the case of legal defeasance, the opinion of counsel must be accompanied by a ruling of the Internal Revenue Service issued to the Corporation, or based on a change in law or regulation occurring after the date of the Indenture.
Eligible Obligations include: (a) with respect to Debt Securities denominated in United States Dollars, Government Obligations (which include direct obligations of, or obligations unconditionally guaranteed by, the
United States of America entitled to the benefit of the full faith and credit thereof and certificates, depository receipts or other instruments which evidence a direct ownership interest in such obligations or in any specific interest or principal payments due in respect thereof); and (b) with respect to Debt Securities denominated in a currency other than United States Dollars or in a composite currency, such other obligations or instruments as shall be specified with respect to such Debt Securities, as contemplated by the Indenture.
GOVERNING LAW
The Debt Securities and the Indenture will be governed by, and construed in accordance with, the laws of the State of New York.
U.S. FEDERAL TAXATION
The Prospectus Supplement will contain a brief summary of the relevant United States federal income tax laws applicable to the Offered Debt Securities.
DESCRIPTION OF CAPITAL STOCK
The Corporation's authorized capital stock consists of 30,000,000 shares of Common Stock, par value $.01 per share (hereinafter and hereinbefore referred to as the "Common Stock"), and 5,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred Stock"), each of which is described below. On August 27, 1996, 11,119,466 shares of Common Stock were issued and outstanding, excluding shares held in treasury, and no shares of Preferred Stock were issued or outstanding. The summary description of the capital stock of the Corporation contained herein is necessarily general and reference should be made in each case to the Corporation's Restated Certificate of Incorporation, Certificate of Adoption of Resolutions Designating Series A Junior Participating Preferred Stock, Bylaws and Rights Agreement which are exhibits to the Registration Statement of which this Prospectus is a part.
COMMON STOCK
GENERAL. Subject to any prior rights of the Preferred Stock then outstanding, holders of Common Stock are entitled to receive such dividends as and when they are declared by the Board of Directors out of funds legally available therefor. Subject to the rights, if any, of the Preferred Stock, all voting rights are vested in the holders of shares of Common Stock, each share being entitled to one vote. The holders of Common Stock are not entitled to cumulative voting rights in the election of directors, which means that the holders of more than 50% of the shares of Common Stock voting for election of directors can elect 100% of the directors if they choose to do so and, in such event, the holders of the remaining less than 50% of the shares voting for the election of directors are not able to elect any person or persons to the Board of Directors. Subject to any prior rights of the Preferred Stock, in the event of liquidation, the holders of Common Stock are entitled to receive pro rata any assets distributable to shareholders in respect of shares held by them. Holders of Common Stock do not have any right to subscribe to any additional securities which may be issued by the Company. The outstanding shares of Common Stock are fully paid and nonassessable.
SPECIAL VOTE REQUIREMENTS FOR CERTAIN TRANSACTIONS. The Restated Certificate of Incorporation of the Corporation provides that certain specified transactions or a series of such transactions with an "Interested Stockholder" (generally defined as a holder of 10% or more of the voting power of the outstanding voting stock of the Corporation or an affiliate of such a holder) require approval by the vote of the holders of at least 80% of the then outstanding shares of voting stock of the Corporation, except in cases in which either certain price criteria and procedural requirements are satisfied or the transaction is approved by a majority of the members of the Board of Directors who are unaffiliated with, and not a nominee of, the Interested Stockholder and who were directors before the Interested Stockholder became an Interested Stockholder (or successors to such directors who are neither affiliated with, nor the nominee of, the Interested Stockholder and who were recommended to succeed
their predecessors by a majority of the directors meeting such criteria). The specified transactions include (i) a merger or consolidation of the Corporation or any of its subsidiaries with or into an Interested Stockholder or any other corporation which is, or after such merger or consolidation would be, an Affiliate (as defined) of an Interested Stockholder; (ii) the sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets of the Corporation or any of its subsidiaries having a value of $1,000,000 or more to or with an Interested Stockholder or any Affiliate of an Interested Stockholder; (iii) the issuance or transfer of stock or other securities of the Corporation or of any of its subsidiaries to an Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property having a value of $1,000,000 or more; (iv) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation proposed by or on behalf of an Interested Stockholder or any Affiliate of any Interested Stockholder; or (v) any reclassification of securities, recapitalization, merger or consolidation of the Corporation with a subsidiary or any similar transaction which has the effect, directly or indirectly, of increasing an Interested Stockholder's or any Affiliate of an Interested Stockholder's proportionate share of the outstanding equity securities (or securities convertible thereinto) of the Corporation or any of its subsidiaries. At present, the Corporation is not aware of the existence of any shareholder who would be an Interested Stockholder.
PROVISIONS WITH RESPECT TO BOARD OF DIRECTORS. The Restated Certificate of Incorporation of the Corporation provides that the members of the Board of Directors are divided into three classes as nearly equal as possible. Each class is elected for a three-year term. At each annual meeting of shareholders, one-third of the members of the Board of Directors are elected for a three-year term, and the other directors remain in office until their three-year terms expire. Thus, control of the Board of Directors cannot be changed in one year; rather, at least two annual meetings must be held before a majority of the members of the Board of Directors can be changed.
Vacancies on the Board of Directors other than those caused by an increase in the number of directors may be filled by a majority of the remaining directors though less than a quorum. A director elected to fill such a vacancy is elected to serve until the next annual meeting of shareholders. Any directorship to be filled as a result of an increase in the number of directors may be filled only by election at an annual meeting or at a special meeting of shareholders called for such purpose unless Alabama law at such time permits such vacancy to be filled by a majority of the remaining directors.
The Alabama Business Corporation Act provides (unless otherwise provided in a corporation's charter) that a director, or the entire Board of Directors, may be removed by the shareholders at a meeting of shareholders expressly called for that purpose with or without cause by vote of the holders of a majority of the shares of the Corporation then entitled to vote on election of directors. The Restated Certificate of Incorporation and Bylaws of the Corporation, however, provide that the affirmative vote of the holders of at least 80% of the voting power of the outstanding capital stock entitled to vote for the elections of directors is required to remove a director or the entire Board of Directors from office.
SPECIAL VOTE REQUIREMENTS FOR CERTAIN AMENDMENTS TO RESTATED CERTIFICATE OF INCORPORATION. Certain portions of the Restated Certificate of Incorporation of the Corporation described in certain of the preceding paragraphs, including those related to business combinations and the classified Board of Directors, may be amended only by the affirmative vote of the holders of 80% of the voting power of the outstanding voting stock of the Corporation.
POSSIBLE EFFECTS OF SPECIAL PROVISIONS. Certain of the provisions contained in the Restated Certificate of Incorporation and Bylaws of the Corporation described above have the effect of making it more difficult to change the Board of Directors and may make the Board of Directors less responsive to shareholder control. Certain of these provisions also may tend to discourage attempts by third parties to acquire the Corporation because of the additional time and expense involved and a greater possibility of failure, and, as a result, may decrease the likelihood of an acquisition of the Corporation by a potential purchaser or adversely affect the price that a potential purchaser would be willing to pay for the capital stock of the Corporation.
PREFERRED STOCK PURCHASE RIGHTS. In order to protect the Corporation's shareholders from coercive or unfair takeover tactics, the Corporation's Board of Directors on July 27, 1988 adopted a Shareholder Rights Plan (the "Shareholder Rights Plan"). Pursuant to the Shareholder Rights Plan, each share of the Corporation's Common Stock outstanding has associated with it two-thirds of one right (a "Right") to purchase, until July 27, 1998 (or, if earlier, the redemption of the Rights), a unit consisting of 1/100th of one share of Series A Junior Participating Preferred Stock (the "Unit") at an exercise price of $80 per Unit, subject to certain antidilution and other adjustments as provided in the Shareholder Rights Plan. The Shareholder Rights Plan also approved the further issuance of Rights for all shares of Common Stock that are subsequently issued unless otherwise specified by the Board. Accordingly and subject to adjustment as provided above, two-thirds of a Right will be issued for each share of Common Stock offered hereby. Until certain specified conditions exist, the Rights will be represented by the certificates for the Common Stock and will not be exercisable or transferable apart from the certificates for the Common Stock.
The Rights have certain anti-takeover effects. The Rights will cause substantial dilution to a person or group that attempts to acquire the Corporation without conditioning the offer on a substantial number of Rights being acquired. The Rights should not interfere with any merger or other business combination approved by the Board of Directors of the Corporation since, among other things, the Board of Directors may, at its option, at any time until 10 days (subject to extension) following the date on which a person or group acquires 20% or more of the outstanding Common Stock, except under certain circumstances, redeem all but not less than all the then outstanding Rights at $.02 per Right.
A Rights Agreement dated as of July 27, 1988, between the Corporation and AmSouth Bank, N.A., as amended, specifies the terms of the Rights and the foregoing description of the Rights is qualified in its entirety by reference to such Rights Agreement, which is an exhibit to the Corporation's Registration Statement on Form 8-A, as amended, File No. 1-7810, dated August 8, 1988, and which is incorporated by reference herein. See "Incorporation of Certain Documents by Reference".
LIMITATIONS ON DIVIDEND PAYMENTS. The Corporation is subject to several indentures and other debt instruments which restrict the Corporation's ability to pay dividends. Under the most restrictive indenture or other debt instrument, the Corporation is required to maintain a consolidated tangible net worth of not less than $80,000,000. At June 30, 1996, the Corporation had a consolidated tangible net worth of approximately $194,657,000 and therefore, under the indenture restriction, the Corporation could make dividend payments in respect of its Common Stock of $114,657,000.
TRANSFER AGENT AND REGISTRAR. The transfer agent and registrar for the Common Stock is Harris Trust Company of New York, 77 Water Street, New York, New York 10005. The Company's Common Stock is listed on the New York Stock Exchange.
PREFERRED STOCK
GENERAL. Under the Corporation's Restated Certificate of Incorporation, the Board of Directors is authorized without further shareholder action to provide for the issuance of up to 5,000,000 shares of Preferred Stock, in one or more series, with such voting powers, or without voting powers, and with such designations and relative rights and preferences as shall be set forth in resolutions providing for the issue thereof adopted by the Board of Directors. It is not possible to state the actual effect of the authorization and issuance of Preferred Stock upon the rights of holders of the Common Stock unless and until the Board of Directors determines the attributes of the Preferred Stock and the specific rights of its holders. Such effects may include, however, (i) restrictions on dividends on Common Stock if dividends on Preferred Stock have not been paid; (ii) dilution of the voting power of Common Stock to the extent that Preferred Stock has voting rights, or to the extent that any Preferred Stock series is convertible into Common Stock; (iii) dilution of the equity interest of Common Stock unless Preferred Stock is redeemed by the Corporation; and (iv) limitation on the right of holders of Common Stock to share in the Corporation's assets upon liquidation until satisfaction of any liquidation preference granted to Preferred Stock. Although the ability of the Corporation to issue Preferred Stock provides flexibility in
connection with possible acquisitions and other corporate purposes, its issuance could be used to impede an attempt by a third party to acquire a majority of the outstanding voting stock of the Corporation.
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK. In connection with the adoption of the Shareholder Rights Plan described above, on July 27, 1988, the Corporation's Board of Directors designated 150,000 shares of the Corporation's authorized but unissued Preferred Stock as "Series A Junior Participating Preferred Stock" (the "Series A Preferred Stock"). The terms of the Series A Preferred Stock are such that one share of Series A Preferred Stock will be approximately equivalent to 100 shares of Common Stock. Each 1/100th of one share of Series A Preferred Stock has the same dividend and voting right as one full share of Common Stock, except that, if dividend payments on the Series A Preferred Stock are in arrears for six consecutive quarters, the Corporation's ability to pay dividends on its Common Stock is restricted and holders of the Series A Preferred Stock will have enhanced voting rights. In addition each 1/100th of one share of Series A Preferred Stock has a minimum quarterly dividend of $.05 per 1/100th of one share, a liquidation preference and certain other rights preferential to Common Stock. Pursuant to the Shareholder Rights Plan, Rights have been issued to the Corporation's shareholders, but such Rights have not yet become exercisable and no shares of Series A Preferred Stock have been issued.
PLAN OF DISTRIBUTION
The Corporation may sell the Offered Securities being offered hereby to underwriters or through agents or directly to purchasers. The applicable Prospectus Supplement will set forth the terms of the offering of the Offered Securities to which such Prospectus Supplement relates, including the name or names of any underwriters or agents with whom the Corporation has entered into arrangements with respect to the sale of such Offered Securities, the public offering or purchase price of such Offered Securities and the net proceeds to the Corporation from such sale, any underwriting discounts and other items constituting underwriters' compensation, any discounts and commissions allowed or paid to dealers, if any, any commissions allowed or paid to agents, and the securities exchanges, if any, on which the Offered Securities will be listed.
The Offered Securities may be purchased to be re-offered to the public through underwriting syndicates led by one or more managing underwriters, or through one or more underwriters. The underwriter or underwriters with respect to an underwritten offering of the Offered Securities will be named in any applicable Prospectus Supplement relating to such offering and, if an underwriting syndicate is used, the managing underwriter or underwriters will be set forth on the cover page of any applicable Prospectus Supplement. Unless otherwise set forth in any applicable Prospectus Supplement, the obligations of the underwriters to purchase the Offered Securities will be subject to certain conditions precedent, and each of the underwriters with respect to a sale of Offered Securities will be obligated to purchase all of its allocated Offered Securities if any are purchased. Any initial public offering price and any discount or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Offered Securities may be offered and sold by the Corporation, directly or through agents designated by the Corporation from time to time, which agents may be affiliates of the Corporation. Any agent involved in the offer and sale of the Offered Securities in respect of which this Prospectus is being delivered will be named, and any commissions payable by the Corporation to such agent will be set forth, in any applicable Prospectus Supplement. Unless otherwise indicated in any applicable Prospectus Supplement, any such agent will be acting on a reasonable efforts basis for the period of its appointment.
The Debt Securities will be new issues of securities with no established trading market. Any underwriters to whom such Debt Securities are sold by the Corporation for public offering and sale may make a market in such Debt Securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of the trading market for any Offered Securities.
Any underwriter or agent participating in the distribution of the Offered Securities may be deemed to be an underwriter, as that term is defined in the Securities Act, of the Offered Securities so offered and sold and any discounts or commissions received by them from the Corporation and any profit realized by them on the sale or resale of the Offered Securities may be deemed to be underwriting discounts and commissions under the Securities Act.
Underwriters, agents and their controlling persons may be entitled, under agreements entered into with the Corporation, to indemnification by the Corporation against certain civil liabilities, including liabilities under the Securities Act or to contribution with respect to payments which the underwriters or agents may be required to make in respect thereof.
LEGAL OPINIONS
The legality of the Offered Securities being offered hereby will be passed upon for the Corporation by Bradley, Arant, Rose & White, Birmingham, Alabama, and certain legal matters will be passed upon for any underwriters, dealers or agents by Winthrop, Stimson, Putnam & Roberts, New York, New York. As of June 30, 1996, the partners and associates of Bradley, Arant, Rose & White beneficially owned approximately 5,000 shares of Common Stock of the Corporation.
EXPERTS
The consolidated balance sheets of Energen Corporation and its subsidiaries as of September 30, 1995 and 1994 and the consolidated statements of income, shareholders' equity, and cash flows for each of the three years in the period ending September 30, 1995, which are included in Energen's annual report on Form 10-K for the year ended September 30, 1995 and which are incorporated by reference in the Prospectus, have been incorporated herein in reliance on the report, which includes an explanatory paragraph regarding Energen changing its method of accounting for certain other post-retirement benefits effective October 1, 1993, of Coopers & Lybrand L.L.P., independent accountants, given on the authority of that firm as experts in auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The Registrant estimates that the expenses to be incurred and borne by it in connection with the proposed sale of the Common Stock and Debt Securities will be as follows:
Registration fee............................................... $ 86,207.00
*Listing fees................................................... 10,000.00
*Rating Agency fees............................................. 60,000.00
*Blue Sky expenses.............................................. 7,500.00
*Transfer Agent's fees.......................................... 1,000.00
*Fees of Trustee, including counsel and authentication fee...... 7,500.00
*Printing expenses.............................................. 20,000.00
*Legal fees and expenses........................................ 145,000.00
*Accounting fees................................................ 8,000.00
*Miscellaneous expenses......................................... 30,000.00
-----------
*Total expenses............................................... $375,207.00
===========
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Article XI of the Registrant's Restated Certificate of Incorporation provides as follows:
XI. Limitation of Liability:
11.01 A director of the Corporation shall not be liable to the
Corporation or its shareholders for money damages for any action taken, or
failure to take action, as a director, except for (i) the amount of a
financial benefit received by such director to which such director is not
entitled; (ii) an intentional infliction of harm by such director on the
Corporation or its shareholders; (iii) a violation of Section 10-2B-8.33 of
the Code of Alabama of 1975 or any successor provision to such section;
(iv) an intentional violation by such director of criminal law; or (v) a
breach of such director's duty of loyalty to the Corporation or its
shareholders. If the Alabama Business Corporation Act, or any successor
statute thereto, is hereafter amended to authorize the further elimination
or limitation of the liability of a director of a corporation, then the
liability of a director of the Corporation, in addition to the limitations
on liability provided herein, shall be limited to the fullest extent
permitted by the Alabama Business Corporation Act, as amended, or any
successor statute thereto. The limitation on liability of directors of the
Corporation contained herein shall apply to liabilities arising out of acts
or omissions occurring subsequent to the adoption of this Article XI and,
except to the extent prohibited by law, to liabilities arising out of acts
or omissions occurring prior to the adoption of this Article XI. Any repeal
or modification of this Article XI by the shareholders of the Corporation
shall be prospective only and shall not adversely affect any limitation on
the liability of a director of the Corporation existing at the time of such
repeal or modification.
(b) Section 2.06 of the Registrant's Bylaws provides as follows:
2.06 Indemnification of Directors and Officers; Liability Insurance--
(a) The Corporation does hereby indemnify any officer or director of the Corporation who was, or is, a party, or is threatened to be made a party, to any threatened, pending, or completed claim, action, or proceeding, whether civil, criminal, administrative, or investigative, including appeals, other than an action by or in the right of the Corporation, by reason of the fact that he is or was a director, an officer, an employee, or an agent of the Corporation or is, or was, serving at the request of the Corporation as a director, officer partner, employee, or agent of another corporation, partnership, joint venture, trust, or other
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enterprise against expenses, including attorneys' fee, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonably cause to believe his conduct was unlawful. The termination of any action or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) The Corporation does hereby indemnify any officer or director of the Corporation who was, or is, a party, or is threatened to be made a party, to any threatened, pending, or completed claim or action by, or in the right of, the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, an officer, an employee, or an agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against expenses, including attorneys' fees, actually and reasonably incurred by him in connection with the defense or settlement of such action if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless, and only to the extent that the court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
(c) To the extent that a director or an officer of the Corporation has been successful on the merits or otherwise in defense of any action or proceeding referred to in subsections (a) and (b) of this section or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses, including attorneys' fees, actually and reasonably incurred by him in connection therewith, notwithstanding that he has not been successful on any other claim, issue, or matter in any such action or proceeding.
(d) Any indemnification under subsections (a) and (b) of this section, unless ordered by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made:
(i) By the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to, or who have been wholly successful on the merits or otherwise with respect to, such claim, action, or proceeding;
(ii) If such a quorum is not obtainable, or even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or
(iii) By the stockholders.
(e) Expenses, including attorneys' fees, incurred in defending a civil or criminal claim, action, or proceeding may be paid by the Corporation in advance of the final disposition of such claim, action, or proceeding as authorized in the manner provided in subsection (d) of this section upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if, and to the extent that, it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this section.
(f) The indemnification authorized by this section shall not be deemed exclusive of, and shall be in addition to, any other rights, whether created prior or subsequent to the enactment of this section, to which those indemnified may be entitled under any statute, rule of law, provision of articles of incorporation, by-law, agreement, or vote of stockholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office and shall continue as to a person who has ceased to be a director or an officer, and shall inure to the benefit of the heirs, executors, and administrators of such a person.
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(g) The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director or an officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this section."
(c) In addition to the foregoing provisions of the Bylaws of the Registrant, directors, officers and controlling persons of the Registrant may be indemnified by the Registrant pursuant to the provisions of Sections 10-2B- 8.50 to 10-2B-8.58 of the Code of Alabama of 1975, as amended, which indemnity may be broader than that provided by the Registrant's Bylaws.
(d) In addition, the Registrant maintains officers' and directors' liability insurance.
ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION
----------- -----------
1(a) Form of Selling Agency Agreement.
1(b) Form of Common Stock Underwriting Agreement.
*4(a) Restated Conformed Certificate of Incorporation of the Registrant,
as amended through February 3, 1995, which was filed as Exhibit
3(f) to the Registrant's Annual Report on Form 10-K for the year
ended September 30, 1995 (File No. 1-7810).
*4(b) Certificate of Adoption of Resolutions Designating Series A Junior
Participating Preferred Stock, adopted June 27, 1988, which was
filed as Exhibit 4(e) to the Registrant's Registration Statement
on Form S-2 (Registration No. 33-25435).
*4(c) Bylaws of the Registrant, which were filed as Exhibit 4(e) to the
Registrant's Registration Statement on Form S-8 (Registration No.
33-14855).
*4(d) Rights Agreement, dated as of July 27, 1988, between Energen
Corporation and AmSouth Bank N.A., Rights Agent, which was filed
as Exhibit I to the Registrant's Registration Statement on Form 8-
A (File No. 1-7810).
*4(e) Amendment of Rights Agreement, dated as of February 28, 1990,
between Energen Corporation and AmSouth Bank N.A., Rights Agent,
which was filed as Exhibit 2 to Registrant's Form 8 Amendment No.
2 to its Registration Statement on Form 8-A (File No. 1-7810).
*4(f) Indenture, dated as of January 1, 1992, between the Registrant and
Boatmen's Trust Company, Trustee, which was filed as Exhibit 4 to
the Registrant's Registration Statement on Form S-3 (Registration
No. 33-44936).
*4(g) Indenture, dated as of March 1, 1993, between the Registrant and
Boatman's Trust Company, Trustee, which was filed as Exhibit 4 to
the Registrant's Registration Statement on Form S-3 (Registration
No. 33-25435).
*4(h) Indenture dated as of November 1, 1993, between Alabama Gas
Corporation and NationsBank of Georgia, National Association,
Trustee, which was filed as Exhibit 4(k) to Alabama Gas's
Registration Statement on Form S-3 (Registration No. 33-70466).
4(i) Form of Indenture with respect to the Debt Securities.
5 Opinion of Bradley, Arant, Rose & White.
12 Computation of Ratios of Earnings to Fixed Charges.
23(a) Consent of Bradley, Arant, Rose & White (contained in their
opinion filed as Exhibit 5 to this Registration Statement).
23(b) Consent of Coopers & Lybrand L.L.P.
24 Power of attorney authorizing execution of registration statement
on Form S-3 on behalf of certain directors of the Registrant.
25 Statement of Eligibility and Qualification of the Trustee under
the Trust Indenture Act of 1939 on Form T-1.
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ITEM. 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (1)(i) and (1)(ii) above do not apply if the registration statement is on Form S- 3, Form S-8, or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of any employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such labilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action, suit or proceeding) is asserted against the registrant by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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(d) The undersigned Registrant hereby undertakes that, (1) for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as a part of this Registration Statement in reliance upon rule 430A and contained in a form of prospectus filed pursuant to Rules 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be a part of this Registration Statement at the time it was declared effective, and (2) for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment if any that contains a form of prospectus shall be deemed to be a new registration statement relating to the Securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF BIRMINGHAM, STATE OF ALABAMA, ON AUGUST 29, 1996.
Energen Corporation
/s/ Geoffrey C. Ketcham
By: _________________________________
GEOFFREY C. KETCHAM
ITS EXECUTIVE VICE PRESIDENT,
TREASURER AND
CHIEF FINANCIAL OFFICER
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PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
* Director August 29, 1996
- -------------------------------------
J. MASON DAVIS, JR.
* Director August 29, 1996
- -------------------------------------
STEPHEN D. BAN
* Director August 29, 1996
- -------------------------------------
WALLACE L. LUTHY
* Director August 29, 1996
- -------------------------------------
JAMES S. M. FRENCH
/s/ Geoffrey C. Ketcham Executive Vice August 29, 1996
- ------------------------------------- President,
GEOFFREY C. KETCHAM Treasurer and Chief
Financial Officer
(Principal
Accounting Officer)
* Chairman of the August 29, 1996
- ------------------------------------- Board Chief
REX J. LYSINGER Executive Officer
and Director
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SIGNATURE TITLE DATE
* Director August 29, 1996
- -------------------------------------
JUDY M. MERRITT
* Director August 29, 1996
- -------------------------------------
DRAYTON NABERS, JR.
* Director August 29, 1996
- -------------------------------------
GEORGE S. SHIRLEY
* President, Chief August 29, 1996
- ------------------------------------- Operating Officer
WM. MICHAEL WARREN, JR. and Director
/s/ Geoffrey C. Ketcham
*By:_______________________________ August 29, 1996
GEOFFREY C. KETCHAM,
ATTORNEY-IN-FACT
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REGISTRATION STATEMENT ON FORM S-3 OF ENERGEN CORPORATION
INDEX OF EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
1(a) Form of Selling Agency Agreement.
1(b) Form of Common Stock Underwriting Agreement.
*4(a) Restated Conformed Certificate of Incorporation of the Registrant, as
amended through February 3, 1995, which was filed as Exhibit 3(f) to
the Registrant's Annual Report on Form 10-K for the year ended
September 30, 1995 (File No. 1-7810).
*4(b) Certificate of Adoption of Resolutions Designating Series A Junior
Participating Preferred Stock, adopted June 27, 1988, which was filed
as Exhibit 4(e) to the Registrant's Registration Statement on Form S-2
(Registration No. 33-25435).
*4(c) Bylaws of the Registrant, which were filed as Exhibit 4(e) to the
Registrant's Registration Statement on Form S-8 (Registration No. 33-
14855).
*4(d) Rights Agreement, dated as of July 27, 1988, between Energen
Corporation and AmSouth Bank N.A., Rights Agent, which was filed as
Exhibit I to the Registrant's Registration Statement on Form 8-A (File
No. 1-7810).
*4(e) Amendment of Rights Agreement, dated as of February 28, 1990, between
Energen Corporation and AmSouth Bank N.A., Rights Agent, which was
filed as Exhibit 2 to Registrant's Form 8 Amendment No. 2 to its
Registration Statement on Form 8-A (File No. 1-7810).
*4(f) Indenture, dated as of January 1, 1992, between the Registrant and
Boatmen's Trust Company, Trustee, which was filed as Exhibit 4 to the
Registrant's Registration Statement on Form S-3 (Registration No. 33-
44936).
*4(g) Indenture, dated as of March 1, 1993, between the Registrant and
Boatman's Trust Company, Trustee, which was filed as Exhibit 4 to the
Registrant's Registration Statement on Form S-3 (Registration No. 33-
25435).
*4(h) Indenture dated as of November 1, 1993, between Alabama Gas
Corporation and NationsBank of Georgia, National Association, Trustee,
which was filed as Exhibit 4(k) to Alabama Gas's Registration
Statement on Form S-3 (Registration No. 33-70466).
4(i) Form of Indenture with respect to the Debt Securities.
5 Opinion of Bradley, Arant, Rose & White.
12 Computation of Ratios of Earnings to Fixed Charges.
23(a) Consent of Bradley, Arant, Rose & White (contained in their opinion
filed as Exhibit 5 to this Registration Statement).
23(b) Consent of Coopers & Lybrand L.L.P.
24 Power of attorney authorizing execution of registration statement on
Form S-3 on behalf of certain directors of the Registrant.
25 Statement of Eligibility and Qualification of the Trustee under the
Trust Indenture Act of 1939 on Form T-1.
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* Incorporated by reference.
Exhibit 1(a)
Energen Corporation
$___,000,000 Medium-Term Notes, Series A Due Nine Months or More from Date of Issue
Selling Agency Agreement
_____________ __, 1996
New York, New York
[Agent's Name]
[Agent's Address]
Dear Sirs:
Energen Corporation, an Alabama corporation (the "Company"), confirms
its agreement with each of you with respect to the issue and sale by the Company
of up to $___,000,000 aggregate principal amount of its Medium-Term Notes,
Series A Due Nine Months or More from Date of Issue (the "Notes"). The Notes
will be issued under an indenture (the "Indenture") dated as of __________ __,
1996 between the Company and The Bank of New York, as trustee (the "Trustee").
Unless otherwise specifically provided for and set forth in a Pricing Supplement
(as defined below), the Notes will be issued in minimum denominations of $1,000
and in denominations exceeding such amount by integral multiples of $1,000, will
be issued only in fully registered form and will have the interest rates,
maturities and, if applicable, other terms set forth in such Pricing Supplement.
The Notes will be issued, and the terms thereof established, in accordance with
the Indenture and the Medium-Term Notes Administrative Procedures attached
hereto as Exhibit A (the "Procedures") (unless a Terms Agreement (as defined in
Section 2(b)) modifies or otherwise supersedes such Procedures with respect to
the Notes issued pursuant to such Terms Agreement). The Procedures may be
amended only by written agreement of the Company and you after notice to, and
with the approval of, the Trustee. For the purposes of this Agreement, the term
"Agent" shall refer to any of you acting solely in the capacity as agent for the
Company pursuant to Section 2(a) and not as principal (collectively, the
"Agents"), the term "Purchaser" shall refer to one of you acting solely as
principal pursuant to Section 2(b) and not as agent, and the term "you" shall
refer to you collectively whether at any time any of you is acting in both such
capacities or in either such capacity.
In acting under this Agreement, in whatever capacity, each of you is acting individually and not jointly.
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933 (the "Act"), and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form (File Number: 333-______), including a basic prospectus, which has become effective, for the registration under the Act of $250,000,0000 aggregate principal amount of debt and equity securities (the "Securities"), including the Notes. Such registration statement, as amended at the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(ix) or (x) under the Act and complies in all other material respects with said Rule. The Company has included in such registration statement, or has filed or will file with the Commission pursuant to the applicable paragraph of Rule 424(b) under the Act, a supplement or supplements to the form of prospectus included in such registration statement relating to the Notes and the plan of distribution thereof (the "Prospectus Supplement"). In connection with the sale of Notes, the Company proposes to file with the Commission pursuant to the applicable paragraph of Rule 424(b) under the Act further supplements to the Prospectus Supplement (each a "Pricing Supplement") specifying the interest rates, maturity dates and, if appropriate, other similar terms of the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any supplement to the Prospectus is filed with the Commission, as of the date of a Terms Agreement and at the date of delivery by the Company of any Notes sold hereunder (a "Closing Date"), (i) the Registration Statement, as amended as of any such time, and the Prospectus, as supplemented as of any such time, and the Indenture will comply in all material respects with the applicable requirements of the Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the Securities Exchange Act of 1934 (the "Exchange Act") and the respective rules thereunder; (ii) the Registration Statement, as amended as of any such time, did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and (iii) the Prospectus, as supplemented as of any such time, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under
(c) As of the time any Notes are issued and sold hereunder, the Indenture will constitute a legal, valid and binding instrument enforceable against the Company in accordance with its terms (except insofar as enforcement may be limited by applicable bankruptcy, reorganization, fraudulent conveyance, insolvency or other laws affecting creditors' rights and remedies generally, as may from time to time be in effect, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought) and such Notes will have been duly authorized, executed, authenticated and, when paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture.
(d) The terms which follow, when used in this Agreement, shall have the meanings indicated. The term "the Effective Date" shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or become effective and each date after the date hereof on which a document incorporated by reference in the Registration Statement is filed. "Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto. "Basic Prospectus" shall mean the form of basic prospectus relating to the Securities contained in the Registration Statement at the Effective Date (unless such basic prospectus has been amended by the Company subsequent to the Effective Date, in which case "Basic Prospectus" shall mean the form of basic prospectus as so amended, whether or not filed with the Commission pursuant to Rule 424(b)). "Prospectus" shall mean the Basic Prospectus as supplemented by the Prospectus Supplement. "Registration Statement" shall mean the registration statement referred to in paragraph (a) above, including incorporated documents, exhibits and financial statements, as amended at the Execution Time. "Rule 415" and "Rule 424" refer to such rules under the Act. Any reference herein to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be; and any reference herein to the terms "amend", "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, deemed to be incorporated therein by reference.
(e) Neither the Company nor Alabama Gas Corporation nor Taurus Exploration, Inc. (individually a "Subsidiary" and collectively the "Subsidiaries") is in violation of its charter or by-laws or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, agreement or other instrument to which it is a party or by which it may be bound, the effect of which is material to the Company or either of the Subsidiaries, and neither the execution or delivery of this Agreement, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof or of the Indenture or the Notes, nor compliance with the terms and provisions hereof or of the Indenture or the Notes will conflict with, or result in a breach of, or constitute a default under (i) the articles of incorporation, by-laws, or any contract, agreement or other instrument to which the Company or any of the Subsidiaries is a party or by which it may be bound or (ii) any law, order, rule or regulation applicable to the Company or any of the Subsidiaries of any court or any federal or state governmental body having jurisdiction over the Company or any of the Subsidiaries or over their respective properties.
(f) The Indenture has been duly authorized, executed and delivered and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other laws affecting creditors' rights generally from time to time in effect, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought) and has been qualified under the Trust Indenture Act.
(g) Up to an aggregate principal amount of $40,000,000 of the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered and paid for by the purchasers thereof, will constitute legal, valid and binding
obligations of the Company and will be entitled to the benefits of the Indenture.
(h) Neither the execution or delivery of this Agreement, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof or of the Indenture or the Notes, nor compliance with the terms and provisions hereof or of the Indenture or the Notes requires any consent, approval, authorization or order of any court or governmental agency or body, except such as may as have been obtained under the Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement.
(i) The Company has filed an annual exemption statement on Form U-3A-2 pursuant to Rule 2 under the Public Utility Holding Company Act of 1935 (the "1935 Act"), and the Company is exempt from all of the provisions of the 1935 Act except Section 9(a)(2) thereof and has received no notice, request or inquiry from the Commission terminating or threatening to terminate or questioning such exemption.
On the basis of the representations and warranties, and subject to the terms and conditions set forth herein, each of the Agents agrees, as agent of the Company, to use its reasonable efforts to solicit offers to purchase the Notes from the Company upon the terms and conditions set forth in the Prospectus (and any supplement thereto) and in the Procedures. Each Agent shall make reasonable efforts to assist the Company in obtaining performance by each purchaser whose offer to purchase Notes has been solicited by such Agent and accepted by the Company, but such Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Except as provided in Section 2(b), under no circumstances will any Agent be obligated to purchase any Notes for its own account. It is understood and agreed, however, that any Agent may purchase Notes as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to instruct the Agents to suspend at any time, for any period of time or permanently, the solicitation of offers to purchase Notes. Upon receipt of instructions from the Company, the Agents will forthwith suspend solicitation of offers to purchase Notes from the Company until such time as the Company has advised them
that such solicitation may be resumed. During the period of any such suspension or suspensions, the Company shall be relieved of its obligation to provide to the Agents the information, documents, certificates, opinions and letter required pursuant to Sections 4(g), 4(j), 4(k) and 4(l) hereof. However, whenever such a suspension is lifted, the Company shall be required to deliver to the Agents, prior to the resumption of any sale of Securities hereunder, the most recent information, documents, certificates, opinions and letter which would have been required except for the suspension.
The Company agrees to pay each Agent a commission, on the Closing Date with respect to each sale of Notes by the Company as a result of a solicitation made by such Agent, in an amount equal to that percentage specified in Schedule I hereto of the aggregate principal amount of the Notes sold by the Company. Such commission shall be payable as specified on Schedule I or in the applicable Terms Agreement.
If the Company shall default in its obligations to deliver Notes to a purchaser whose offer it has accepted, the Company shall indemnify and hold each of you harmless against any loss, claim or damage arising from or as a result of such default by the Company.
(b) Subject to the terms and conditions stated herein, whenever the Company and any Agent determine that the Company shall sell Notes directly to such Agent as Purchaser, such Agent will notify the Company and each such sale of Notes shall be made in accordance with the terms of this Agreement and a supplemental agreement relating to such sale. Each such supplemental agreement (which may be either an oral or written agreement) is herein referred to as a "Terms Agreement". Each Terms Agreement shall describe the Notes to be purchased by the Purchaser pursuant thereto and shall specify the aggregate principal amount of such Notes, the price to be paid to the Company for such Notes, the maturity date of such Notes, the rate at which interest will be paid on such Notes, the dates on which interest will be paid on such Notes and the record date with respect to each such payment of interest, the Closing Date for the purchase of such Notes, the place of delivery of the Notes and payment therefor, the method of payment and any requirements for the delivery of opinions of counsel, certificates from the Company or its officers or a letter from the Company's independent public accountants as described in Section 6(b). Any such Terms
Agreement may also specify the period of time referred to in Section 4(m). Any written Terms Agreement may be in the form attached hereto as Exhibit B. The Purchaser's commitment to purchase Notes shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth.
Delivery of the certificates for Notes sold to the Purchaser pursuant to a Terms Agreement shall be made not later than the Closing Date agreed to in such Terms Agreement, against payment of funds to the Company in the net amount due to the Company for such Notes by the method and in the form set forth in the Procedures, unless otherwise agreed to between the Company and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such Purchaser at a price equal to 100% of the principal amount thereof less a percentage equal to the commission applicable to an agency sale of a Note of identical maturity and (ii) may be resold by such Purchaser at varying prices from time to time or, if set forth in the applicable Terms Agreement and Pricing Supplement, at a fixed public offering price. In connection with any resale of Notes purchased, a Purchaser may use a selling or dealer group and may reallow to any broker or dealer any portion of the discount or commission payable pursuant hereto.
(a) Prior to the termination of the offering of the Notes (including
by way of resale by a Purchaser of Notes), the Company will not file any
amendment of the Registration Statement or supplement to the Prospectus
(except for (i) periodic or current reports filed under the Exchange Act,
(ii) a supplement relating to any offering of Notes providing solely for
the specification of or a change in pricing information including the
maturity dates, interest rates, issuance prices or other similar terms of
any Notes or (iii) a supplement relating to an offering of Securities other
than the Notes) unless the Company has furnished each of you a copy for
your review prior to filing and given each of you a reasonable opportunity
to comment on any such proposed amendment or supplement. Subject to the
foregoing sentence, the Company will cause each supplement to the
Prospectus to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to you of such filing. The Company will promptly
advise each of you
(i) when the Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of any offering of Notes, any amendment of the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission for any amendment of the Registration Statement or supplement to the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its reasonable efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend the Registration Statement or to supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (i) notify each of you to suspend solicitation of offers to purchase Notes (and, if so notified by the Company, each of you shall forthwith suspend such solicitation and cease using the Prospectus as then supplemented), (ii) prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or effect such compliance and (iii) supply any supplemented Prospectus to each of you in such quantities as you may reasonably request. If such amendment or supplement, and any documents, certificates and opinions furnished to each of you pursuant to paragraph (g) of this Section 4 in connection with the preparation or filing of such amendment or supplement are satisfactory in all respects to you, you will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to the Registration Statement, if such an amendment is required, resume your obligation to solicit offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act and will furnish to each of
you
copies of such documents. In addition, on or prior to the date on which the Company makes any announcement to the general public concerning earnings or concerning any other event which is required to be described, or which the Company proposes to describe, in a document filed pursuant to the Exchange Act, the Company will furnish to each of you the information contained or to be contained in such announcement. The Company also will furnish to each of you copies of all press releases or announcements furnished to news or wire services and any other material press releases and announcements. The Company will promptly notify each of you of (i) any decrease in the rating of the Notes or any other debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or (ii) any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change, as soon as the Company learns of any such decrease or notice.
(d) As soon as practicable, the Company will make generally available to its security holders and to each of you an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus may be required by the Act, as many copies of the Prospectus and any supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the Notes for sale under the laws of such jurisdictions as any of you may designate, will maintain such qualifications in effect so long as required for the distribution of the Notes, and will arrange for the determination of the legality of the Notes for purchase by institutional investors; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject.
(g) The Company shall furnish to each of you such information, documents, certificates of officers of the Company and opinions of counsel for the Company relating to the business, operations and affairs of the Company, the Registration Statement, the Prospectus, and any amendments thereof or supplements thereto, the Indenture, the Notes, this Agreement, the Procedures and the performance by the Company and you of its and your respective obligations
hereunder and thereunder as any of you may from time to time and at any time prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the Notes is consummated, (i) pay all expenses incident to the performance of its obligations under this Agreement and any Terms Agreement, including the fees and disbursements of its accountants and counsel, the cost of printing or other production and delivery of the Registration Statement, the Prospectus, all amendments thereof and supplements thereto, the Indenture, this Agreement, any Terms Agreement and all other documents relating to the offering, the cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements, including fees of counsel, incurred in compliance with Section 4(f), the fees and disbursements of the Trustee and the fees of any agency that rates the Notes, (ii) reimburse each of you as requested for all out-of-pocket expenses (including without limitation advertising expenses), if any, incurred by you in connection with this Agreement and (iii) pay the fees and expenses of your counsel incurred in connection with this Agreement.
(i) Each acceptance by the Company of an offer to purchase Notes will be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance, as though made at and as of such time, and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Notes relating to such acceptance, as though made at and as of such time (it being understood that for purposes of the foregoing affirmation and covenant such representations and warranties shall relate to the Registration Statement and Prospectus as amended or supplemented at each such time). Each such acceptance by the Company of an offer for the purchase of Notes shall be deemed to constitute an additional representation, warranty and agreement by the Company that, as of the settlement date for the sale of such Notes, after giving effect to the issuance of such Notes, of any other Notes to be issued on or prior to such settlement date and of any other Securities to be issued and sold by the Company on or prior to such settlement date, the aggregate amount of Securities (including any Notes) which have been issued and sold by the Company will not exceed the lesser of the principal amount of Securities registered pursuant to the Registration Statement and the limit of the bonded indebtedness of the Company as approved from time to time by the Company's shareholders. The Company will inform you promptly upon your request of the aggregate amount of Securities registered under the Registration Statement which remain unsold.
(j) Each time that the Registration Statement or the Prospectus is amended or supplemented (other than by an amendment or supplement relating to any offering of Securities other than the Notes or providing solely for the specification of or a change in the maturity dates, the interest rates, the issuance prices or other similar terms of any Notes sold pursuant hereto), the Company will deliver or cause to be delivered promptly to each of you a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the date of the effectiveness of such amendment or the date of the filing of such supplement, in form reasonably satisfactory to you, of the same tenor as the certificate referred to in Section 5(d) but modified to relate to the last day of the fiscal quarter for which financial statements of the Company were last filed with the Commission and to the Registration Statement and the Prospectus as amended and supplemented to the time of the effectiveness of such amendment or the filing of such supplement.
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement
(i) relating to any offering of Securities other than the Notes, (ii)
providing solely for the specification of or a change in the maturity
dates, the interest rates, the issuance prices or other similar terms of
any Notes sold pursuant hereto or (iii) setting forth or incorporating by
reference financial statements or other information as of and for a fiscal
quarter or fiscal year, unless, in the case of clause (iii) above, in the
reasonable judgment of any of you, such financial statements or other
information are of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished promptly to
each of you a written opinion of Bradley, Arant, Rose & White (or other
counsel reasonably satisfactory to the Agents), counsel of the Company
satisfactory to each of you, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form
satisfactory to each of you, of the same tenor as the opinion referred to
in Section 5(b) hereof but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement or, in
lieu of such opinion, such counsel may furnish each of you with a letter to
the effect that you may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance (except
that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of the effectiveness of such amendment or the filing of such
supplement).
(m) During the period, if any, specified (whether orally or in writing) in any Terms Agreement, the Company shall not, without the prior consent of the Purchaser thereunder, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any debt securities issued or guaranteed by the Company (other than the Notes being sold pursuant to such Terms Agreement).
(o) The Company will not issue and sell Notes in excess of $40,000,000 unless, as of the Closing Date for each issuance beyond such $40,000,000 limit, the Company furnishes or causes to be furnished to each of you (a) resolutions of the shareholders of the Company certified by the Secretary of the Company approving the issuance by the Company of additional bonded indebtedness, which approval would cover the Notes to be issued on such Closing Date and (b) the written opinion of Bradley, Arant, Rose & White (or such other counsel reasonably satisfactory to the Agents), counsel for the Company, satisfactory to each of you, with respect to such issuance, of the same tenor as the opinions referred to in Sections 5(b)(v) and (x).
(a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to each Agent the opinion of Bradley, Arant, Rose & White (or such other counsel reasonably satisfactory to the Agents), counsel for the Company, dated the Execution Time, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Alabama, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business and wherein the failure to be so qualified would have a material adverse effect on the business of the Company and the subsidiaries taken as a whole;
(ii) each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify does not have a material adverse effect on the business of the Company and its subsidaries as a whole;
(iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture);
(iv) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement);
(v) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought); and up to an aggregate principal amount of $40,000,000 of the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture (other than the indemnity provisions contained in Section 8 hereof or Section 701 of the Indenture as to which such counsel need express no opinion);
(vi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus describing material contracts or agreements relating to the Company fairly summarize such matters;
(vii) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been or will be made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement at the Effective Date or at the Execution Time contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(viii) this Agreement has been duly authorized, executed and delivered by the Company;
(ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein except such as have been obtained under the Act
and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained;
(x) neither the execution and delivery of the Indenture, the issue and sale up to an aggregate principal amount of $40,000,000 of the Notes, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its Subsidiaries is a party or bound or any judgment, order, regulation or decree known to such counsel to be applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its Subsidiaries;
(xi) to the knowledge of such counsel no holders of securities of the Company have rights to the registration of such securities under the Registration Statement;
(xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is a fair and accurate summary of the principal Federal income tax consequences associated with the ownership of the Notes; and
(xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof.
In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Agent and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the date such opinion is rendered.
(c) Each Agent shall have received from Winthrop, Stimson, Putnam & Roberts (or such other counsel reasonably satisfactory to the Company and the Agents), counsel for the Agents, such opinion or opinions, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a certificate of the Company, signed by the Chairman of the Board or the president and the principal financial or accounting officer of the Company, dated the Execution Time, to the effect that the signers of such certificate have reviewed the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date hereof and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time, Coopers & Lybrand (or such other accountants reasonably satisfactory to the Company and the Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to the Agents), dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules and regulations;
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; and that any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles;
(2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company to the date of the most recent available financial statements (audited or unaudited) of the Company there
were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents; or
(3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly Reports on Form 10-Q, incorporated in the Registration Statement and the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are included or incorporated in the Registration Statement and the Prospectus, on the basis of a reading of the unaudited pro forma financial statements, carrying out certain specified procedures, inquiries of certain officials of the Company and the acquired company who have responsibility for financial and accounting matters, and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the compilation of such statements.
References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have furnished to each Agent such further information, documents, certificates and opinions of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to such Agents and counsel for the Agents, this Agreement and all obligations of any Agent hereunder may be canceled at any time by the Agents. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be delivered at the office of Winthrop, Stimson, Putnam & Roberts, counsel for the Agents, at One Battery Park Plaza, New York, New York 10004-1490, on the date hereof.
(a) If filing of the Prospectus or any supplement thereto is required
pursuant to Rule 424(b), the Prospectus and any such supplement shall have
been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened; and shareholder approval sufficient to
authorize the issuance and sale of the Notes to be sold to the Purchaser
shall be obtained by the Company.
(b) To the extent agreed to between the Company and the Purchaser in a Terms Agreement, the Purchaser shall have received, appropriately updated, (i) a certificate of the Company, dated as of the Closing Date, to the effect set forth in Section 5(d) (except that references to the Prospectus shall be to the Prospectus as supplemented as of the date of such Terms Agreement), (ii) the opinion of
Bradley, Arant, Rose & White (or other counsel reasonably satisfactory to the Agents), counsel for the Company, dated as of the Closing Date, to the effect set forth in Section 5(b), (iii) the opinion of Winthrop, Stimson, Putnam & Roberts (or other counsel reasonably satisfactory to the Company), counsel for the Purchaser, dated as of the Closing Date, to the effect set forth in Section 5(c), and (iv) letter of Coopers & Lybrand (or other independent accountants reasonably satisfactory to the Agents), independent accountants for the Company, dated as of the Closing Date, to the effect set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have furnished to the Purchaser such further information, certificates and documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement and the applicable Terms Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement or such Terms Agreement and required to be delivered to the Purchaser pursuant to the terms hereof and thereof shall not be in all material respects reasonably satisfactory in form and substance to the Purchaser and its counsel, such Terms Agreement and all obligations of the Purchaser thereunder and with respect to the Notes subject thereto may be canceled at, or at any time prior to, the respective Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
(b) The Company agrees that any person who has agreed to purchase and pay for any Note pursuant to a solicitation by any of the Agents shall have the right to refuse to purchase such Note if, subsequent to the agreement to purchase such Note, any change, condition or development specified in any of Sections 9(b)(i) through (v) shall have occurred (with the judgment of the Agent which presented the offer to purchase such Note being substituted for any judgment of a Purchaser required therein) the effect of which is, in the judgment of the Agent which presented the offer to purchase such Note, so material and adverse as to make it impractical or inadvisable to proceed with the sale and delivery of such Note (it being understood that under no circumstance shall any such Agent have any duty or obligation to the Company or to any such person to exercise the judgment
permitted to be exercised under this Section 7(b) and Section 9(b)).
(b) Each of you agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to you, but only with reference to written information relating to such of you furnished to the Company by such of you specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which you may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page, and under the heading "Plan of Distribution", of the Prospectus Supplement constitute the only information furnished in writing by any of you for inclusion in the documents referred to in the foregoing indemnity, and you confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to
commissions that would have been received by such of you if such commissions had been payable). If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and each of you shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and of each of you in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) of the Notes from which such Losses arise, and benefits received by each of you shall be deemed to be equal to the total commissions received by such of you in connection with the sale of Notes from which such Losses arise (or, in the case of Notes sold pursuant to a Terms Agreement, the aggregate commissions that would have been received by such of you if such commissions had been payable). Relative fault shall be determined by reference to whether any alleged untrue statement or omission relates to information provided by the Company or any of you. The Company and each of you agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls any of you within the meaning of the Act or the Exchange Act and each director, officer, employee and agent of any of you shall have the same rights to contribution as you and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
(b) Each Terms Agreement shall be subject to termination in the absolute discretion of the Purchaser, by notice given to the Company prior to delivery of any payment for
any Note to be purchased thereunder, if prior to such time (i) there shall have
occurred, subsequent to the agreement to purchase such Note, any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which is, in the
judgment of the Purchaser, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of such Note, (ii) there
shall have been, subsequent to the agreement to purchase such Note, any decrease
in the rating of any of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change, (iii) trading in any
securities of the Company shall have been suspended by the Commission or a
national securities exchange, or minimum or maximum prices for trading in
securities generally shall have been fixed, or maximum ranges for prices for
securities shall have been required, by either of said exchanges or by order of
the Commission or any other governmental authority (iv) a banking moratorium
shall have been declared by either Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the judgment of the Purchaser, impracticable or inadvisable to proceed
with the offering or delivery of such Notes as contemplated by the Prospectus
(exclusive of any supplement thereto which is created after the time of
execution of such Terms Agreement).
if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at the office of Energen Corporation, 2101 Sixth Avenue North, Birmingham, Alabama 35203, attention of Treasurer.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and you.
Very truly yours,
Energen Corporation
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
[Agent's Name]
SCHEDULE I
The Company agrees to pay each Agent a commission equal to the following percentage of the principal amount of each Note sold on an agency basis by such Agent:
Maturity Commission Rate
-------- ---------------
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 8 years .600%
8 years to less than 9 years .600%
9 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .700%
20 years to less than 30 years .750%
30 years and beyond *
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Unless otherwise specified in the applicable Terms Agreement, the discount or commission payable to a Purchaser shall be determined on the basis of the commission schedule set forth above.
Notices to [Agent's Name] shall be directed to it at [Agent's Address].
* To be negotiated between the applicable Agent and the Company.
EXHIBIT A
ENERGEN CORPORATION
The Medium-Term Notes, Due Nine Months or More from Date of Issue (the "Notes") of Energen Corporation (the "Company") are to be offered on a continuing basis. [Agent's Name(s)], as agents (each an "Agent"), have agreed to solicit purchases of Notes issued in fully registered form. The Agents will not be obligated to purchase Notes for their own account. The Notes are being sold pursuant to a Selling Agency Agreement between the Company and the agents named therein (including the Agents) dated the date hereof (the "Agency Agreement"). The Notes will rank equally with all other unsecured and unsubordinated debt of the Company and have been registered with the Securities and Exchange Commission (the "Commission"). The Notes will be issued under an Indenture dated as of ___________, 1996 (the "Indenture"), between the Company and The Bank of New York, as trustee (the "Trustee"). The Trustee will act as the paying agent (the "Paying Agent") for the payment of principal of and premium, if any, and interest on the Notes and will perform, as the Paying Agent, unless otherwise specified, the other duties specified herein.
The Agency Agreement provides that Notes may also be purchased by an Agent acting solely as principal and not as agent. In the event of any such purchase, the functions of both the Agent and the beneficial owner under the administrative procedures set forth below shall be performed by such Agent acting solely as principal, unless otherwise agreed to between the Company and such Agent acting as principal.
Each Note will be represented by either a Global Security (as defined hereinafter) delivered to Cede & Co. ("Cede"), as agent for The Depository Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry Note") or a certificate delivered to the Holder thereof or a Person designated by such Holder (a "Certificated Note"). Only Notes denominated and payable in U.S. dollars may be issued as Book-Entry Notes. An owner of a Book- Entry Note will not be entitled to receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of, the solicitation of orders by the Agents and the sale as a result thereof by the Company are explained below.
Administrative and record-keeping responsibilities will be handled for the Company by its Treasurer. The Company will advise the Agents and the Trustee in writing of those persons handling administrative responsibilities with whom the Agents and the Trustee are to communicate regarding orders to purchase Notes and the details of their delivery.
Administrative procedures and specific terms of the offering are explained below. Book-Entry Notes will be issued in accordance with the administrative procedures set forth in Part I hereof, as adjusted in accordance with changes in DTC's operating requirements, and Certificated Notes will be issued in accordance with the administrative procedures set forth in Part II hereof. Unless otherwise defined herein, terms defined in the Indenture and the Notes shall be used herein as therein defined. Notes for which interest is calculated on the basis of a fixed interest rate, which may be zero, are referred to herein as "Fixed Rate Notes". Notes for which interest is calculated on the basis of a floating interest rate are referred to herein as "Floating Rate Notes". To the extent the procedures set forth below conflict with the provisions of the Notes, the Indenture, DTC's operating requirements or the Agency Agreement, the relevant provisions of the Notes, the Indenture, DTC's operating requirements and the Agency Agreement shall control.
PART I
In connection with the qualification of the Book-Entry Notes for eligibility in the book-entry system maintained by DTC, Trustee will perform the custodial, document control and administrative functions described below, in accordance with its respective obligations under a Letter of Representations from the Company and Trustee to DTC dated as of the date hereof and a Medium- Term Note Certificate Agreement between Trustee and DTC, dated as of ____________, and its obligations as a participant in DTC, including DTC's Same- Day Funds Settlement system ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
- -------- below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to
$___,000,000 principal amount of all such Book-Entry Notes
that have the same original issue date, original issue
discount provisions, if any, Interest Payment Dates, Regular
Record Dates, Interest Payment Period, redemption, repayment
and extension provisions, if any, Maturity Date, and, in the
case of Fixed Rate Notes, interest rate,
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or, in the case of Floating Rate Notes, initial interest
rate, Base Rate, Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread Multiplier, if any,
minimum interest rate, if any, and maximum interest rate, if
any (collectively, the "Terms"). Each Global Security will
be dated and issued as of the date of its authentication by
the Trustee. Each Global Security will bear an original
issue date, which will be (i) with respect to an original
Global Security (or any portion thereof), the original issue
date specified in such Global Security and (ii) following a
consolidation of Global Securities, with respect to the
Global Security resulting from such consolidation, the most
recent Interest Payment Date to which interest has been paid
or duly provided for on the predecessor Global Securities,
regardless of the date of authentication of such resulting
Global Security. No Global Security will represent any
Certificated Note.
Identification The Company has arranged with the CUSIP Service Bureau of
- -------------- Standard & Poor's Corporation (the "CUSIP Service Bureau")
Numbers: for the reservation of a series of CUSIP numbers, which
- ------- series consists of approximately ____ CUSIP numbers and
relates to Global Securities representing Book-Entry Notes
and book-entry medium-term notes issued by the Company with
other series designations. The Company has obtained from the
CUSIP Service Bureau a written list of such reserved CUSIP
numbers and has delivered such list to the Trustee and DTC.
The Company will assign CUSIP numbers to Global Securities
as described below under Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau periodically of the CUSIP
numbers that the Company has assigned to Global Securities.
At any time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global Securities, and, if it
deems necessary , the Company will reserve additional CUSIP
numbers for assignment to Global Securities. Upon obtaining
such additional CUSIP numbers, the Company shall deliver a
list of such additional CUSIP numbers to Trustee and DTC.
Registration: Global Securities will be issued only in fully registered
- ------------ form without coupons. Each
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Global Security will be registered in the name of CEDE &
CO., as nominee for DTC, on the securities register for the
Notes maintained under the Indenture. The beneficial owner
of a Book-Entry Note (or one or more indirect participants
in DTC designated by such owner) will designate one or more
participants in DTC (with respect to such Book-Entry Note,
the "Participants") to act as agent or agents for such owner
in connection with the book-entry system maintained by DTC,
and DTC will record in book-entry form, in accordance with
instructions provided by such Participants, a credit balance
with respect to such beneficial owner in such Book-Entry
Note in the account of such Participants. The ownership
interest of such beneficial owner (or such participant) in
such Book-Entry Note will be recorded through the records of
such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by book
- --------- entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC)
acting on behalf of beneficial transferors and transferees
of such Note.
Exchanges: Upon receipt of instructions from Company, Trustee may
- --------- deliver to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation (a copy of which shall be
attached to the resulting Global Security described below)
specifying (i) the CUSIP numbers of two or more outstanding
Global Securities that represent (A) Fixed Rate Book-Entry
Notes having the same Terms and for which interest has been
paid to the same date or (B) Floating Rate Book-Entry Notes
having the same Terms and for which interest has been paid
to the same date, (ii) a date, occurring at least thirty
days after such written notice is delivered and at least
thirty days before the next Interest Payment Date for such
Book-Entry Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security and
(iii) a new CUSIP number, obtained from the Company, to be
assigned to such replacement Global Security. Upon receipt
of such a notice, DTC will send to its participants
-4-
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(including Trustee) a written reorganization notice to the
effect that such exchange will occur on such date. Prior to
the specified exchange date, Trustee will deliver to the
CUSIP Service Bureau a written notice setting forth such
exchange date and such new CUSIP number and stating that, as
of such exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid. On the
specified exchange date, Trustee will exchange such Global
Securities for a single Global Security bearing the new
CUSIP number and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service Bureau
procedures, be canceled and not reassigned until the Book-
Entry Notes represented by such exchanged Global Securities
have matured or been redeemed. Notwithstanding the
foregoing, if the Global Securities to be exchanged exceed
$150,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to represent each
$150,000,000 of principal amount of the exchanged Global
Securities and an additional Global Security will be
authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date nine months or
- ---------- more after the Original Issue Date for such Note. A
Floating Rate Book-Entry Note will mature only on an
Interest Payment Date for such Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
- ------------- $1,000 or any amount in excess thereof that is an integral
multiple of $1,000. Global Securities will be denominated
in principal amounts not in excess of $150,000,000. If one
or more Book-Entry Notes having an aggregate principal
amount in excess of $150,000,000 would, but for the
preceding sentence, be represented by a single Global
Security, then one Global Security will be authenticated and
issued to represent each $150,000,000 principal amount of
such Book-Entry Note or Notes and an additional Global
Security will be authenticated and issued to represent any
remaining principal amount of such Book-Entry Note or Notes.
In such a case, each of the Global Securities representing
such Book-
-5-
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Entry Note or Notes shall be assigned the same CUSIP number.
Interest: General. Interest, if any, on each Book-Entry Note will
- -------- -------
accrue from the original issue date for the first interest
period or the last date to which interest has been paid, if
any, for each subsequent interest period, on the Global
Security representing such Book-Entry Note, and will be
calculated and paid in the manner described in such Book-
Entry Note and in the Prospectus (as defined in the Agency
Agreement), as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each payment
of interest on a Book-Entry Note will include interest
accrued to but excluding the Interest Payment Date (provided
that, in the case of Floating Rate Book-Entry Notes which
reset daily or weekly, interest payments will include
accrued interest to but excluding the Regular Record Date
immediately preceding the Interest Payment Date) or to but
excluding Maturity (other than a Maturity of a Fixed Rate
Book-Entry Note occurring on the 31st day of a month, in
which case such payment of interest will include interest
accrued to but excluding the 30th day of such month).
Interest payable at the Maturity of a Book-Entry Note will
be payable to the Person to whom the principal of such Note
is payable. Standard & Poor's Corporation will use the
information received in the pending deposit message
described under Settlement Procedure "C" below in order to
include the amount of any interest payable and certain other
information regarding the related Global Security in the
appropriate (daily or weekly) bond report published by
Standard & Poor's Corporation.
Regular Record Dates. The Regular Record Date with respect
--------------------
to any Interest Payment Date shall be the date fifteen
calendar days immediately preceding such Interest Payment
Date (whether or not a Business Day).
Interest Payment Dates on Fixed Rate Book-Entry Notes.
-----------------------------------------------------
Unless otherwise specified pursuant to Settlement Procedure
"A" below, interest payments on Fixed Rate Book-Entry Notes
will be made semiannually on ________ 1 and __________ 1 of
each year and at
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Maturity; provided, however, that if an Interest Payment
-------- -------
Date for a Fixed Rate Book-Entry Note is not a Business Day,
the payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Interest Payment
Date; provided further, that in the case of a Fixed Rate
----------------
Book-Entry Note issued between a Regular Record Date and an
Interest Payment Date, the first interest payment will be
made on the Interest Payment Date following the next
succeeding Regular Record Date.
Interest Payment Dates on Floating Rate Book-Entry Notes.
--------------------------------------------------------
Interest payments will be made on Floating Rate Book-Entry
Notes monthly, quarterly, semi-annually or annually. Unless
otherwise agreed upon, interest will be payable, in the case
of Floating Rate Book-Entry Notes with a monthly Interest
Payment Period, on the third Wednesday of each month; with a
quarterly Interest Payment Period, on the third Wednesday of
March, June, September and December of each year; with a
semi-annual Interest Payment Period on the third Wednesday
of the two months specified pursuant to Settlement Procedure
"A" below; and with an annual Interest Payment Period, on
the third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; provided, however, that if
-------- -------
an Interest Payment Date for a Floating Rate Book-Entry Note
would otherwise be a day that is not a Business Day with
respect to such Floating Rate Book-Entry Note, such Interest
Payment Date will be the next succeeding Business Day with
respect to such Floating Rate Book-Entry Note, except in the
case of a Floating Rate Book-Entry Note for which the Base
Rate is LIBOR, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date will
be the immediately preceding Business Day; and provided
--------
further, that in the case of a Floating Rate Book-Entry Note
-------
issued between a Regular Record Date and an Interest Payment
Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding Regular
Record Date.
Notice of Interest Payment and Regular Record Dates. On the
---------------------------------------------------
first Business Day of January, April, July and October of
each year, Trustee
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will deliver to the Company and DTC a written list of
Regular Record Dates and Interest Payment Dates that will
occur with respect to Book-Entry Notes during the six-month
period beginning on such first Business Day. Promptly after
each Interest Determination Date for Floating Rate Book-
Entry Notes, Trustee as Calculation Agent, will notify
Standard & Poor's Corporation of the interest rates
determined on such Interest Determination Date.
Calculation of Fixed Rate Book-Entry Notes. Interest on
- -------------- ---------------------------
Interest: Fixed Rate Book-Entry Notes (including interest for partial
- --------
periods) will be calculated on the basis of a 360-day year
of twelve 30-day months.
Floating Rate Book-Entry Notes. Interest rates on Floating
------------------------------
Rate Book-Entry Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Book-Entry Notes,
except as otherwise set forth therein, will be calculated on
the basis of actual days elapsed and a year of 360 days,
except that in the case of a Floating Rate Book-Entry Note
for which the Base Rate is Treasury Rate, interest will be
calculated on the basis of the actual number of days in the
year.
Payments of Payment of Interest Only. Promptly after
- ----------- ------------------------
Principal and each Regular Record Date, Paying Agent will
- ------------- deliver to the Company and DTC a written notice setting
Interest: forth, by CUSIP number, the amount of interest to be paid on
- -------- each Global Security on the following Interest Payment Date
(other than an Interest Payment Date coinciding with
Maturity) and the total of such amounts. DTC will confirm
the amount payable on each Global Security on such Interest
Payment Date by reference to the appropriate (daily or
weekly) bond reports published by Standard & Poor's
Corporation. The Company will pay to Paying Agent, the
total amount of interest due on such Interest Payment Date
(other than at Maturity), and Paying Agent will pay such
amount to DTC, at the times and in the manner set forth
below under "Manner of Payment".
Payments at Maturity. On or about the first Business Day of
--------------------
each month, Paying Agent will deliver to the Company, DTC
and the Trustee a
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written list of principal and interest to be paid on each
Global Security maturing (on a Maturity or Redemption Date
or otherwise) in the following month. Company and DTC will
confirm the amounts of such principal and interest payments
with respect to each such Global Security on or about the
fifth Business Day preceding the Maturity of such Global
Security. On or before Maturity, the Company will pay to
Paying Agent, the principal amount of such Global Security,
together with interest due at such Maturity. Paying Agent
will pay such amount to DTC at the times and in the manner
set forth below under "Manner of Payment". If any Maturity
of a Global Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Maturity. Promptly after payment to DTC of the principal
and interest due at Maturity of such Global Security, the
Trustee will cancel such Global Security in accordance with
the Indenture and so advise the Company.
Manner of Payment. The total amount of any principal and
-----------------
interest due on Global Securities on any Interest Payment
Date or at Maturity shall be paid by the Company to Paying
Agent in immediately available funds for use by the Paying
Agent on such date. The Company will make such payment on
such Global Securities by instructing Paying Agent to
withdraw funds from an account maintained by the Company at
Paying Agent or by wire transfer to Paying Agent. The
Company will confirm any such instructions in writing to
Paying Agent. Prior to 10 A.M. (New York City time) on the
date of Maturity or as soon as possible thereafter, Paying
Agent will pay by separate wire transfer (using Fedwire
message entry instructions in a form previously agreed to
with DTC) to an account at the Federal Reserve Bank of New
York previously specified by DTC, in funds available for
immediate use by DTC, each payment of principal (together
with interest thereon) due on a Global Security on such
date. On each Interest Payment Date (other than at
Maturity), interest payments shall be made to DTC, in same
day funds in accordance with existing arrangements between
Paying
-9-
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Agent and DTC. On each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate use to
the respective Participants in whose names the Book-Entry
Notes represented by such Global Securities are recorded in
the book-entry system maintained by DTC. None of the
Company (as issuer or as paying agent), the Trustee or
Paying Agent shall have any direct responsibility or
liability for the payment by DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under
-----------------
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly
to the beneficial owner of such Note.
Procedures upon Company Notice to Trustee Regarding Exercise
- --------------- --------------------------------------------
Company's Exercise of Optional Reset. Not less than 45 or more
- ------------------ -----------------
of Optional Reset than 60 days before an Optional Reset Date as
- ----------------- set forth in a Book-Entry Note, the Company
or Optional will notify the Trustee whether it is
- ----------- exercising its option to reset the Interest Rate or Spread
Extension of or Spread Multiplier, as the case may be, for such Book-
- ------------ Entry Note, and if so, (i) the new Interest Rate or Spread
Maturity: or Spread Multiplier, as the case may be, for such Book-
- -------- Entry Note during the period from such Optional Reset Date
to the next Optional Reset Date as set forth in such Book-
Entry Note or, if there is no such next Optional Reset Date,
to the Stated Maturity of such Book-Entry Note (the
"Subsequent Interest Period"); and (ii) the provisions, if
any, for redemption of such Book-Entry Note during such
Subsequent Interest Period, including the date or dates on
which or the period or periods during which such redemption
may occur during such Subsequent Interest Period.
Company Notice to Trustee Regarding Exercise of Optional
--------------------------------------------------------
Extension of Maturity. If the Company elects to exercise an
---------------------
option, as set forth in a Book-Entry Note, to extend the
Stated Maturity of such Note, it will so notify the Trustee
no less than 45 or more than 60 days before the Stated
Maturity of such Book-Entry Note, and will further
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indicate (i) the new Stated Maturity; (ii) the Interest Rate
or Spread or Spread Multiplier, as the case may be, and
(iii) the provisions, if any, for redemption of such Book-
Entry Note during such extension period, including the date
or dates on which or the period or periods during which such
redemption may occur during such extension period.
Trustee Notice to DTC Regarding Company's Exercise of
-----------------------------------------------------
Optional Extension or Reset. Upon receipt of notice from
---------------------------
the Company regarding the Company's exercise of either an
optional extension of maturity or an optional reset, the
Trustee will hand-deliver a notice to DTC not less than 40
days before the Optional Reset Date (in which case a "Reset
Notice") or the Stated Maturity (in which case an "Extension
Notice"), as the case may be, which Reset Notice or
Extension Notice shall identify such Book-Entry Note by
CUSIP number and shall contain the information required by
the terms of the Book-Entry Note.
Trustee Notice to Company Regarding Option to be Repaid.
-------------------------------------------------------
If, after receipt of either a Reset Notice or an Extension
Notice, DTC exercises the option for repayment by tendering
the Global Security representing the Book-Entry Note to be
repaid as set forth in such Note, the Trustee shall give
notice to the Company not less than 22 days before the
Optional Reset Date or the old Stated Maturity, as the case
may be, of the principal amount of Book-Entry Notes to be
repaid on such Optional Reset Date or old Stated Maturity,
as the case may be.
Company Notice Regarding New Interest Rate or New Spread or
-----------------------------------------------------------
Spread Multiplier. If the Company elects to revoke the
-----------------
Interest Rate or Spread or Spread Multiplier and establish a
higher interest rate or Spread or Spread Multiplier for an
Optional Reset Period or extension period, as the case may
be, it shall, not less than 20 days before such Optional
Reset Date or old Stated Maturity, so notify the Trustee.
The Trustee will immediately thereafter notify DTC of the
new Interest Rate or Spread or Spread Multiplier applicable
to such Book-Entry Note.
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Trustee Notice to Company Regarding DTC Revocation of Option
------------------------------------------------------------
to be Repaid. If, after DTC has tendered any Book-Entry
------------
Notes for repayment pursuant to an Extension Notice or an
Optional Reset Notice, DTC then revokes such tender for
repayment, the Trustee shall give notice to the Company not
less than five days prior to the Stated Maturity or Optional
Reset Date, as the case may be, of such revocation and of
the principal amount of Book-Entry Notes for which tender
for repayment has been revoked.
Deposit of Repayment Price. On or before any old Stated
--------------------------
Maturity where the Maturity has been extended, and on or
before an Optional Reset Date, the Company shall deposit
with the Paying Agent an amount of money sufficient to pay
the principal amount, plus interest accrued to such old
Stated Maturity or Optional Reset Date, as the case may be,
for all the Book-Entry Notes or portions thereof which are
to be repaid on such old Stated Maturity or Optional Reset
Date, as the case may be. Such Paying Agent will use such
money to repay such Book-Entry Notes pursuant to the terms
set forth in such Notes.
Procedures upon Company Notice to Trustee Regarding Exercise
- --------------- --------------------------------------------
Company's of Optional Redemption. At least 45 days
- --------- ----------------------
Exercise of prior to the date on which it intends to redeem a Book-Entry
- ----------- Note, the Company will notify the Trustee that it is
Optional exercising such option with respect to such Book-Entry
- -------- Note on such date.
Redemption:
- ----------
Trustee Notice to DTC Regarding Company's Exercise of
-----------------------------------------------------
Optional Redemption. After receipt of notice that the
-------------------
Company is exercising its option to redeem a Book-Entry
Note, the Trustee will, at least 30 days before the
redemption date for such Book-Entry Note, hand deliver to
DTC a notice identifying such Book-Entry Note by CUSIP
number and informing DTC of the Company's exercise of such
option with respect to such Book-Entry Note.
Deposit of Redemption Price. On or before any redemption
---------------------------
date, the Company shall deposit with Paying Agent an amount
of money sufficient to pay the redemption price, plus
interest accrued to such redemption date, for
|
all the Book-Entry Notes or portions thereof which are to be
repaid on such redemption date. Such Paying Agent will use
such money to repay such Book-Entry Notes pursuant to the
terms set forth in such Notes.
Payments of Trustee Notice to Company of Option to be
- ----------- -----------------------------------------
Principal and Repaid. Upon receipt of notice of exercise
- ------------- ------
Interest upon of the option for repayment and the Global Securities
- ------------- representing the Book-Entry Notes so to be repaid
Exercise of as set forth in such Notes, the Trustee shall (unless such
- ----------- notice was received pursuant to the Company's exercise
Optional Repayment of an optional reset or an optional extension of maturity,
- ------------------ in each of which cases the relevant procedures set
(Except Pursuant forth above are to be followed) give notice to the Company
- ---------------- not less than 20 days prior to each Optional Repayment
to Company's Date of such Optional Repayment Date and of the principal
- ------------ amount of Book-Entry Notes to be repaid on such
Exercise of Optional Repayment Date.
- -----------
Optional Reset
- --------------
or Optional
- -----------
Extension):
- ----------
Deposit of Repayment Price. On or prior to any Optional
--------------------------
Repayment Date, the Company shall deposit with such Paying
Agent an amount of money sufficient to pay the optional
repayment price, and accrued interest thereon to such date,
of all the Book-Entry Notes or portions thereof which are to
be repaid on such date. Such Paying Agent will use such
money to repay such Book-Entry Notes pursuant to the terms
set forth in such Notes.
Procedure for Rate The Company and the Agents will discuss from time to
- ------------------ time the aggregate principal amount of, the issuance price
Setting and of, and the interest rates to be borne by, Book-Entry Notes
- ----------- that may be sold as a result of the solicitation of orders
Posting: by the Agents. If the Company decides to set prices of,
- ------- and rates borne by, any Book-Entry Notes in respect of
which the Agents are to solicit orders (the setting of such
prices and rates to be referred to herein as "posting") or
if the Company decides to change prices or rates previously
posted by it, it will promptly advise the Agents of the
prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company,each Agent will
- -------------- advise the Company promptly by telephone of all orders
Rejection of to purchase Book-Entry Notes received by such Agent, other
- ------------
Orders:
- ------
|
than those rejected by it in whole or in part in the
reasonable exercise of its discretion. Unless otherwise
agreed by the Company and the Agents, the Company has the
right to accept orders to purchase Book-Entry Notes and may
reject any such orders in whole or in part.
Preparation of If any order to purchase a Book-Entry Note is accepted by
- -------------- or on behalf of the Company, the Company will prepare a
Pricing pricing supplement (a "Pricing Supplement") reflecting the
- ------- applicable interest rates and other terms of such Book-
Supplement: Entry Note and will arrange to have the appropriate
- ---------- number of copies thereof filed with the Commission in
accordance with the applicable paragraph of Rule 424(b)
under the Act and will supply at least ten copies thereof
(and additional copies if requested) to the Agent which
presented the order (the "Presenting Agent"). The Presenting
Agent will cause a Prospectus and Pricing Supplement to be
delivered to the purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements (other than those retained for files) will be
destroyed.
Suspension of The Company reserves the right, in its sole discretion,
- ------------- to instruct the Agents to suspend at any time, for
Solicitation; any period of time or permanently, the solicitation of
- ------------- orders to purchase Book-Entry Notes. Upon receipt of such
Amendment or instructions, the Agents will forthwith suspend
- ------------ solicitation until such time as the Company has advised
Supplement: them that such solicitation may be resumed. In the event
- ---------- that at the time the Company suspends solicitation of
purchases there shall be any orders outstanding for
settlement, the Company will promptly advise the Agents and
the Trustee whether such orders may be settled and whether
copies of the Prospectus as in effect at the time of the
suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the
settlement of such orders. The Company will have the sole
responsibility for such decision and for any
-14-
|
arrangements that may be made in the event that the Company
determines that such orders may not be settled or that
copies of such Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the Agency Agreement)
or the Prospectus, it will promptly advise the Agents and
furnish the Agents with the proposed amendment or supplement
and with such certificates and opinions as are required, all
to the extent required by and in accordance with the terms
of the Agency Agreement. Subject to the provisions of the
Agency Agreement, the Company may file with the Commission
any such supplement to the Prospectus relating to the Notes.
The Company will provide the Agents, and the Trustee with
copies of any such supplement, and confirm to the Agents
that such supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule 424(b).
Procedures For When the Company has determined to change the interest
- -------------- rates of Book-Entry Notes being offered, it will promptly
Rate Changes: advise the Agents and the Agents will forthwith suspend
- ------------ solicitation of orders. The Agents will telephone the
Company with recommendations as to the changed interest
rates. At such time as the Company has advised the Agents of
the new interest rates, the Agents may resume solicitation
of orders. Until such time only "indications of interest"
may be recorded.
Delivery of A copy of the Prospectus and a Pricing Supplement relating
- ----------- to a Book-Entry Note must accompany or precede the earliest
Prospectus: of any written offer of such Book-Entry Note, confirmation
- ---------- of the purchase of such Book-Entry Note and payment for
such Book-Entry Note by its purchaser. If notice of a change
in the terms of the Book-Entry Notes is received by the
Agents between the time an order for a Book-Entry Note is
placed and the time written confirmation thereof is sent by
the Presenting Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus and
Pricing Supplement setting forth the terms in effect when
the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, the Presenting
Agent will deliver a
-15-
|
Prospectus and Pricing Supplement as herein described with
respect to each Book-Entry Note sold by it. The Company
will make such delivery if such Book-Entry Note is sold
directly by the Company to a purchaser (other than an
Agent).
Confirmation: For each order to purchase a Book-Entry Note solicited by
------------ any Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the details set
forth above and delivery and payment instructions
Settlement: The receipt by the Company of immediately available funds in
- ---------- payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Book-Entry
Note shall constitute "settlement" with respect to such
Book-Entry Note. All orders accepted by the Company will be
settled on the third Business Day following the date of sale
of such Book-Entry Note pursuant to the timetable for
settlement set forth below unless the Company and the
purchaser agree to settlement on another day which shall be
no earlier than the next Business Day following the date of
sale.
Settlement Settlement Procedures with regard to each Book-Entry Note
- ---------- sold by the Company through any Agent, as agent, shall be
Procedures: as follows:
- ----------
A. The Presenting Agent will advise the Company by
|
telephone of the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note, the interest rate or, in the case of a Floating Rate Book-Entry Note, the Base Rate, initial interest rate (if known at such time), Index Maturity, Interest Reset Period, Interest Reset Dates, Spread or Spread Multiplier (if any), Minimum Interest Rate (if any) and Maximum Interest Rate (if any).
4. Interest Payment Dates and the Interest Payment Period.
5. Redemption, repayment and extension provisions, if any.
6. Settlement date.
7. Price.
8. Presenting Agent's commission, determined as provided in Section 2 of the Agency Agreement.
9. Whether such Book-Entry Note is issued at an original issue discount and, if so, the total amount of OID, the yield to maturity and the initial accrual period OID.
B. The Company will assign a CUSIP number to the Global Security representing such Book-Entry Note and then advise Trustee by telephone (confirmed in writing at any time on the same date) or electronic transmission of the information set forth in Settlement Procedure "A" above, such CUSIP number and the name of the Presenting Agent. The Company will also notify the Presenting Agent by telephone of such CUSIP number as soon as practicable. Each such communication by the Company shall constitute a representation and warranty by the Company to the Trustee and the Presenting Agent that (i) such Note is then, and at the time of issuance and sale thereof will be, duly authorized for issuance and sale by the Company, and (ii) such Note, and the Global Security representing such Note, will conform with the terms of the Indenture for such Note.
C. Trustee will enter a pending deposit message through DTC's Participant Terminal System providing the following settlement information to DTC (which shall route such information to Standard & Poor's Corporation), and the Presenting Agent:
1. The information set forth in Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such Book-Entry Note, number of days by which such date succeeds the related Regular Record Date and amount of interest payable on such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Security representing such Book-Entry Note.
6. Whether such Global Security will represent any other Book-Entry Note (to the extent known at such time).
D. To the extent the Company has not already done so, the Company will deliver to the Trustee a Global Security in a form that has been approved by the Company, the Agents and the Trustee.
E. The Trustee will complete such Book-Entry Note, stamp the appropriate legend, as instructed by DTC, if not already set forth thereon, and authenticate the Global Security representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to Trustee's participant account at DTC.
G. Trustee will enter an SDFS deliver order through DTC's Participant Terminal System instructing DTC to (i) debit such Book-Entry Note to Trustee's participant account and credit such Book-Entry Note to the Presenting Agent's participant account and (ii) debit the Presenting Agent's settlement account and credit Trustee's settlement account for an amount equal to the price of such Book-Entry Note less the Presenting Agent's commission. The entry of such a deliver order shall constitute a representation and warranty by Trustee to DTC that (i) the Global Security representing such
Book-Entry Note has been issued and authenticated and
(ii) Trustee is holding such Global Security pursuant
to the Medium-Term Note Certificate Agreement between
Trustee and DTC.
H. The Presenting Agent will enter an SDFS deliver order through DTC's Participant Terminal System instructing DTC (i) to debit such Book-Entry Note to the Presenting Agent's participant account and credit such Book-Entry Note to the participant accounts of the Participants with respect to such Book-Entry Note and (ii) to debit the settlement accounts of such Participants and credit the settlement account of the Presenting Agent for an amount equal to the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS deliver orders described in Settlement Procedures "G" and "H" will be settled in accordance with SDFS operating procedures in effect on the settlement date.
J. Trustee will, upon receipt of funds from the Presenting Agent in accordance with Settlement Procedure "G", wire transfer to the account of the Company maintained at _______________ Birmingham, Alabama (or if directed in writing by the Company, credit to an account of the Company maintained at Trustee) funds available for immediate use in the amount transferred to Trustee in accordance with Settlement Procedure "G".
K. The Presenting Agent will confirm the purchase of such
Book-Entry Note to the purchaser either by transmitting
to the Participants with respect to such Book-Entry
Note a confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
Settlement For orders of Book-Entry Notes solicited by any Agent
- ---------- and accepted by the Company for settlement on the
Procedures first Business Day after the sale date, Settlement
- ---------- procedures "A" through "K" set forth above shall be
Timetable:
- ---------
|
completed as soon as possible but not later than the respective times (New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
|
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C", shall
be completed as soon as practicable but no later than 11:00
A.M. and 12:00 Noon on the first Business Day after the sale
date and no later than 2:00 P.M. on the Business Day before
the settlement date, respectively. If the initial interest
rate for a Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no
later than 12:00 Noon and 2:00 P.M., respectively, on the
Business Day before the settlement date. Settlement
Procedure "I" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in SDFS operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note is rescheduled or canceled, Company will instruct Trustee to deliver to DTC, through DTC's Participant Terminal System, a cancellation message to such effect by no later than 12:00 noon on the Business Day immediately preceding the scheduled settlement date and the Trustee will enter such message no later than by 2:00 P.M. on the Business Day immediately preceding the scheduled settlement date.
Failure to Settle: If Trustee fails to enter an SDFS deliver order with respect
- ----------------- to a Book-Entry Note
pursuant to Settlement Procedure "G", Trustee may deliver to DTC, through DTC's Participant Terminal System, as soon as practicable, a withdrawal message instructing DTC to debit such Book-Entry Note to Trustee's participant account provided that Trustee's participant account contains a principal amount of the Global Security representing such Book-Entry Note that is at least equal to the principal amount to be debited. If a withdrawal message is processed with respect to all the Book-Entry Notes represented by a Global Security, the Trustee will mark such Global Security "canceled" in accordance with the Indenture and so advise the Company and Trustee will make appropriate entries in its records and return the canceled Global Securities to Company. The CUSIP number assigned to such Global Security shall, in accordance with CUSIP Service Bureau procedures, be canceled and not reassigned until the Book-Entry Notes represented by such Global Security have matured or been redeemed. If a withdrawal message is processed with respect to one or more, but not all, of the Book-Entry Notes represented by a Global Security, Trustee will exchange such Book-Entry Note for two Global Securities, one of which shall represent such Book-Entry Notes and shall be canceled immediately after issuance and the other of which shall represent the other Book-Entry Notes previously represented by the surrendered Global Security and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid to the Participants with respect to such Note by the beneficial purchaser thereof (or a Person, including an indirect participant in DTC, acting on behalf of such purchaser), such Participants and, in turn, the Presenting Agent may enter SDFS deliver orders through DTC's Participant Terminal System reversing the orders entered pursuant to Settlement Procedures "H" and "G", respectively. Thereafter, Trustee will deliver the withdrawal message and take the related actions described in the preceding paragraph. If such failure shall have occurred for any reason other than a default by the Presenting Agent in the performance of its obligations hereunder and under the
Agency Agreement, then the Company will reimburse the
Presenting Agent or Trustee as applicable, on an equitable
basis for the loss of the use of the funds during the period
when they were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect to
one or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, Trustee will provide,
in accordance with Settlement Procedure "E", for the
authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
Trustee Not to Nothing herein shall be deemed to require the Trustee
- -------------- to risk or expend its own funds in connection with any
Risk Funds: payment to the Company, DTC, the Agents or the purchaser,
- ---------- it being understood by all parties that payments made by
the Trustee to the Company, DTC, the Agents or the purchaser
shall be made only to the extent that funds are provided to
the Trustee for such purpose.
Payment of Each Agent shall forward to the Company, on a monthly basis,
- ---------- a statement of the out-of-pocket expenses incurred by such
Expenses: Agent during that month that are reimbursable to it pursuant
- -------- to the terms of the Agency Agreement. The Company will remit
payment to the Agents currently on a monthly basis.
Advertising The Company will determine with the Agents the amount of
- ----------- advertising that may be appropriate in soliciting offers to
Costs: purchase the Book-Entry Notes. Advertising expenses will be
- ----- paid by the Company.
Periodic Periodically, Trustee will send to the Company a statement
- -------- setting forth the principal amount of Book-Entry Notes
Statements from Outstanding as of that date and setting forth a brief
- --------------- description of any sales of Book-Entry Notes which the
Trustee: Company has advised Trustee but which have not yet been
- ------- settled.
|
Trustee will serve as registrar and transfer agent in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of the
- -------- date of its authentication by the Trustee. Each Certificated
Note will bear an Original Issue Date, which will be (i)
with respect to an original Certificated Note (or any
portion thereof), its original issuance date (which will be
the settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued subsequently
upon transfer or exchange of a Certificated Note or in lieu
of a destroyed, lost or stolen Certificated Note, the
Original Issue Date of the predecessor Certificated Note,
regardless of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in fully registered
- ------------ form without coupons. A Certificated Note may be presented
Transfers and for transfer or exchange at the principal corporate trust
- ------------- office of Trustee in Jacksonville, Florida. Certificated
for Exchanges: Notes will be exchangeable for other Certificated Notes
- ------------- having identical terms but different authorized
denominations without service charge. Certificated Notes
will not be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date nine months or
- ---------- more after the settlement date for such Note. A Floating
Rate Certificated Note will mature only on an Interest
Payment Date for such Note. Any Note denominated in Japanese
yen will mature on a date not less than one year from the
Original Issue Date (as defined below) for such Note. Any
Note denominated in Pounds Sterling will mature on a date
not less than one year, nor more than five years, after its
Original Issue Date.
Denominations: The denomination of any Certificated Note denominated in
- ------------- U.S. dollars will be a minimum of $1,000 or any amount in
excess thereof that is an integral multiple of $1,000. The
authorized denominations of Certificated Notes denominated
in any other currency will
|
be specified pursuant to "Settlement Procedures" below.
Interest: General. Interest, if any, on each Certificated Note will
- -------- -------
accrue from the original issue date for the first interest
period or the last date to which interest has been paid, if
any, for each subsequent interest period, and will be
calculated and paid in the manner described in such Note and
in the Prospectus, as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each
payment of interest on a Certificated Note will include
interest accrued to but excluding the Interest Payment Date
(provided that, in the case of Certificated Notes which
reset daily or weekly, interest payments will include
accrued interest to but excluding the Regular Record Date
immediately preceding the Interest Payment Date) or to but
excluding Maturity (other than a Maturity of a Fixed Rate
Certificated Note occurring on the 31st day of a month, in
which case such payment of interest will include interest
accrued to but excluding the 30th day of such month).
Regular Record Dates. The Regular Record Dates with respect
--------------------
to any Interest Payment Date shall be the date fifteen
calendar days immediately preceding such Interest Payment
Date (whether or not a Business Day).
Fixed Rate Certificated Notes. Unless otherwise specified
-----------------------------
pursuant to Settlement Procedure "A" below, interest
payments on Fixed Rate Certificated Notes will be made
semi-annually on _________ 1 and ___________ 1 of each year
and at Maturity; provided, however, that if any Interest
-------- -------
Payment Date for a Fixed Rate Certificated Note is not a
Business Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Interest Payment Date; provided further, that in the case of
----------------
a Fixed Rate Certificated Note issued between a Regular
Record Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following
the next succeeding Regular Record Date.
|
provided, however, that if an Interest Payment Date for a
-------- -------
Floating Rate Certificated Note would otherwise be a day
that is not a Business Day with respect to such Floating
Rate Certificated Note, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Certificated Note, except in the case of a
Floating Rate Certificated Note for which the Base Rate is
LIBOR, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and provided further,
----------------
that in the case of a Floating Rate Certificated Note issued
between a Regular Record Date and an interest Payment Date,
the first interest payment will be made on the Interest
Payment Date following the next succeeding Regular Record
Date.
Calculation of Fixed Rate Certificated Note. Interest on
- -------------- ----------------------------
Interest: Fixed Rate Certificated Notes (including interest for
- -------- partial periods) will be calculated on the basis of a 360-
day year of twelve 30-day months.
Floating Rate Certificated Notes. Interest rates on
--------------------------------
Floating Rate Certificated Notes will be determined as set
forth in the form of Notes. Interest on Floating Rate
Certificated Notes, except as otherwise set forth therein,
will be calculated on the basis of actual days elapsed and a
year of 360 days, except that in the case of a Floating Rate
Certificated Note for which the Base Rate is Treasury Rate,
interest will be
|
calculated on the basis of the actual number of days in the
year.
Payments of Interest, if any, on each Certificated Note will be
- ----------- calculated and paid in the manner described in such Note and
principal and in the Prospectus, as supplemented by the applicable Pricing
- ------------- Supplement. Unless otherwise provided in the Indenture or
Interest: the Certificated Note, the first payment of interest on any
- -------- Certificated Note originally issued between a Record Date
and an Interest Payment Date will be made on the next
succeeding Interest Payment Date. Interest payable at the
Maturity of a Certificated Note will be payable to the
Person to whom the principal of such Note is payable. Unless
other arrangements are made, all interest payments
(excluding interest payments made on the Maturity Date) will
be made by check mailed to the person entitled thereto as
provided above; provided, however, that the holder of
-------- -------
$10,000,000 (or the equivalent thereof in other currencies)
or more of Certificated Notes with similar tenor and terms
will be entitled to receive payment by wire transfer in U.S.
dollars.
Within 10 days following each Record Date, the Trustee will
inform the Company of the total amount of the interest
payments to be made by the Company on the next succeeding
Interest Payment Date. The Trustee will provide monthly to
the Company a list of the principal and interest to be paid
on Certificated Notes maturing in the next succeeding month.
Trustee will be responsible for withholding taxes on interest
paid on Certificated Notes as required by applicable law.
If the Maturity of a Certificated Note is not a Business
Day, the payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Maturity.
|
Procedures upon Company Notice to Trustee Regarding Exercise
- --------------- --------------------------------------------
Company's Exercise of Optional Reset. Not less than 45 or more more than 60
- ------------------ -----------------
of Optional Reset days before an Optional Reset Date as set forth in a
- ----------------- Certificated Note,the Company will notify the Trustee
or Optional whether it is exercising its option to reset the Interest
- ----------- Rate or Spread or Spread Multiplier, as the case may be, for
Extension of such certificated Note, and if so, (i) the new Interest Rate
- ------------ or Spread or Spread Multiplier, as the case may be, for such
Maturity: Certificated Note during the period from such Optional Reset
- -------- Date to the next Optional Reset Date as set forth in such
Certificated Note or, if there is no such next Optional
Reset Date, to the Maturity Date of such Certificated Note
(the "Subsequent Interest Period"); and (ii) the provisions,
if any, for redemption of such Certificated Note during such
Subsequent Interest Period, including the date or dates on
which or the period or periods during which such redemption
may occur during such Subsequent Interest Period.
Company Notice to Trustee Regarding Exercise of Optional
--------------------------------------------------------
Extension of Maturity. If the Company elects to exercise an
---------------------
option, as set forth in a Certificated Note, to extend the
Maturity Date of such Note, it will so notify the Trustee no
less than 45 or more than 60 days before the Maturity Date
of such Certificated Note, and will further indicate (i) the
new Maturity Date; (ii) the Interest Rate or Spread or
Spread Multiplier, as the case may be, and (iii) the
provisions, if any, for redemption of such Certificated Note
during such extension period, including the date or dates on
which or the period or periods during which such redemption
may occur during such extension period.
Trustee Notice to Holders Regarding Company's Exercise of
---------------------------------------------------------
Optional Extension or Reset. Upon receipt of notice from
---------------------------
the Company regarding the Company's exercise of either an
optional extension of maturity or an optional reset, the
Trustee will mail a notice, first class, postage prepaid, to
the Holder not less than 40 days before the Optional Reset
Date (in which case a "Reset Notice") or the Maturity Date
(in which case an "Extension Notice"), as the case may be,
which Reset Notice or Extension Notice shall contain the
|
information required by the terms of the Certificated Note.
Date, as the case may be, for all the Certificated Notes or
portions thereof which are to be repaid on such old Maturity
Date or Optional Reset Date, as the case may be. Such
Trustee will use such money to repay such Certificated Notes
pursuant to the terms set forth in such Notes.
Procedures upon Company Notice to Trustee Regarding Exercise
- --------------- --------------------------------------------
Company's of Optional Redemption. At least 45 days
- --------- ----------------------
Exercise of prior to the date on which it intends to redeem a
- ----------- Certificated Note, the Company will notify the Trustee that
Optional it is exercising such option with respect to such
- -------- Certificated Note on such date.
Redemption:
- ---------- Trustee Notice to Holders Regarding Company's Exercise of
---------------------------------------------------------
Optional Redemption. After receipt of notice that the
-------------------
Company is exercising its option to redeem a Certificated
Note, the Trustee will, at least 30 days before the
redemption date for such Certificated Note, mail a notice,
first class, postage prepaid, to the Holder of such
Certificated Note informing such Holder of the Company's
exercise of such option with respect to such Certificated
Note.
Deposit of Redemption Price. On or before any redemption
---------------------------
date, the Company shall deposit with such Trustee an amount
of money sufficient to pay the redemption price, plus
interest accrued to such redemption date, for all the
Certificated Notes or portions thereof and which are to be
repaid on such redemption date. Such Trustee will use such
money to repay such Certificated Notes pursuant to the terms
set forth in such Notes.
Payments of Trustee Notice to Company of Option to be Repaid. Upon
- ----------- ------------------------------------------------
Principal and receipt of notice of exercise of the option for repayment
- ------------- and the Global Securities representing the Certificated
Interest Upon Notes so to be repaid as set forth in such Notes, the
- ------------- Trustee shall (unless such notice was received pursuant to
Exercise of the Company's exercise of an optional reset or an optional
- ----------- extension of maturity, in each of which cases the relevant
Optional Repayment procedures set forth above are to be followed) give notice
- ------------------ to the Company not less than 20 days prior to each Optional
(Except Pursuant Repayment Date of such Optional Repayment Date and of the
- ---------------- principal amount of
to Company's
- ------------
Exercise of
- -----------
Optional Reset
- --------------
or Optional
- -----------
Extension):
- ----------
|
Certificated Notes to be repaid on such Optional Repayment
Date.
Deposit of Repayment Price. On or prior to any Optional
--------------------------
Repayment Date, the Company shall deposit with such Trustee
an amount of money sufficient to pay the optional repayment
price, and accrued interest thereon to such date, of all the
Certificated Notes or portions thereof which are to be
repaid on such date. Such Trustee will use such money to
repay such Certificated Notes pursuant to the terms set
forth in such Notes.
Procedure for Rate The Company and the Agents will discuss from
- ------------------ time to time the aggregate principal amount of, the issuance
Setting and price of, and the interest rates to be borne by, Notes that
- ----------- may be sold as a result of the solicitation of orders by the
Posting: Agents. If the Company decides to set prices of, and rates
- ------- borne by, any Notes in respect of which the Agents are to
solicit orders (the setting of such prices and rates to be
referred to herein as "posting") or if the Company decides
to change prices or rates previously posted by it, it will
promptly advise the Agents of the prices and rates to be
posted.
Acceptance and Unless otherwise instructed by the Company, each Agent will
- -------------- advise the Company promptly by telephone of all orders to
Rejection of purchase Certificated Notes received by such Agent, other
- ------------ than those rejected by it in whole or in part in the
Orders: reasonable exercise of its discretion. Unless otherwise
- ------ agreed by the Company and the Agents, the Company has the
sole right to accept orders to purchase Certificated Notes
and may reject any such orders in whole or in part. Before
accepting any order to purchase a Certificated Note to be
settled in less than three Business Days, the Company shall
verify that the Trustee will have adequate time to prepare
and authenticate such Note.
Preparation of If any order to purchase a Certificated Note is accepted by
- -------------- or on behalf of the Company, the Company will prepare a
Pricing pricing supplement (a "Pricing Supplement") reflecting the
- ------- interest rates and other terms of such Certified Note and
Supplement: will arrange to have the applicable number of copies thereof
- ---------- filed with the Commission in accordance with the
|
applicable paragraph of Rule 424(b) under the Act and will
supply at least ten copies thereof (and additional copies if
requested) to the Agent which presented the order (the
"Presenting Agent"). The Presenting Agent will cause a
Prospectus and Pricing Supplement to be delivered to the
purchaser of such Certificated Note.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements (other than those retained for files) will be
destroyed.
Suspension of The Company reserves the right, in it sole discretion, to
- ------------- instruct the Agents to suspend at any time for any period of
Solicitation; time or permanently, the solicitation of orders to purchase
- ------------- Certificated Notes. Upon receipt of such instructions, the
Amendment or Agents will forthwith suspend solicitation until such time
- ------------ as the Company has advised them that such solicitation may
Supplement: be resumed.
- ----------
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be
settled and whether copies of the Prospectus as in effect at
the time of the suspension, together with the appropriate
Pricing Supplement, may be delivered in connection with the
settlement of such orders. The Company will have the sole
responsibility for such decision and for any arrangements
that may be made in the event that the Company determines
that such orders may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will promptly
advise the Agents and furnish the Agents with the proposed
amendment or supplement and with such certificates and
opinions as are required, all to the extent required by and
in accordance with the terms of the Agency Agreement.
Subject to the provisions of the Agency Agreement, the
Company may file with the Commission any supplement to the
|
Prospectus relating to the Notes. The Company will provide the Agents and the Trustee with copies of any such supplement, and confirm to the Agents that such supplement has been filed with the Commission pursuant to the applicable paragraph of Rule 424(b).
Procedure for When the Company has determined to change the interest rates
- ------------- of Certificated Notes being offered, it will promptly advise
Rate Changes: the Agents and the Agents will forthwith suspend
- ------------ solicitation of orders. The Agents will telephone the
Company with recommendations as to the changed interest
rates. At such time as the Company has advised the Agents of
the new interest rates, the Agents may resume solicitation
of orders. Until such time only "indications of interest"
may be recorded.
Delivery of A copy of the Prospectus and a Pricing Supplement relating
- ----------- to a Certificated Note must accompany or precede the
Prospectus: earliest of any written offer of such Certificated Note,
- ---------- confirmation of the purchase of such Certificated Note and
payment for such Certificated Note by its purchaser. If
notice of a change in the terms of the Certificated Notes is
received by the Agents between the time an order for a
Certificated Note is placed and the time written
confirmation thereof is sent by the Presenting Agent to a
customer or his agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement setting
forth the terms in effect when the order was placed. Subject
to "Suspension of Solicitation; Amendment or Supplement"
above, the Presenting Agent will deliver a Prospectus and
Pricing Supplement as herein described with respect to each
Certificated Note sold by it. The Company will make such
delivery if such Certificated Note is sold directly by the
Company to a purchaser (other than any Agent).
Confirmation: For each order to purchase a Certificated Note solicited by
- ------------ any Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the details set
forth above and delivery and payment instructions.
|
Settlement: The receipt by the Company of immediately available funds in
- ---------- exchange for an authenticated Certificated Note delivered to
the Presenting Agent and the Presenting Agent's delivery of
such Certificated Note against receipt of immediately
available funds shall, with respect to such Certificated
Note, constitute "settlement". All orders accepted by the
Company will be settled on the third Business Day following
the date of sale pursuant to the timetable for settlement
set forth below, unless the Company and the purchaser agree
to settlement on another day which shall be no earlier than
the next Business Day following the date of sale.
Settlement Settlement Procedures with regard to each
- ---------- Certificated Note sold by the Company through any Agent, as
Procedures: agent, shall be as follows:
- ----------
A. The Presenting Agent will advise the Company by
telephone of the following settlement information, in
time for the Trustee to prepare and authenticate the
required Note:
1. Name in which such Certificated Note is to be
registered ("Registered Owner").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the Registered
Owner (if available).
|
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note, the interest rate or, in the case of a Floating Rate Certificated Note, the initial interest rate (if known at such time), Base Rate, Index Maturity, Interest Reset Period, Interest Reset Dates, Spread or Spread Multiplier (if any), Minimum Interest Rate (if any) and Maximum Interest Rate (if any).
7. Interest Payment Dates and the Interest Payment Period.
8. Specified Currency and whether the option to elect payment in a Specified Currency applies and if the Specified Currency is not U.S. dollars, the authorized denominations.
9. Redemption, repayment or extension provisions, if any.
10. Settlement date.
11. Price (including currency).
12. Presenting Agent's commission, determined as provided in Section 2 of the Agency Agreement.
13. Whether such Certificated Note is issued at an original issue discount, and, if so, the total amount of OID, the yield to maturity and the initial accrual period OID.
B. The Company will advise Trustee by telephone (confirmed in writing at any time on the sale date) or electronic transmission of the information set forth in Settlement Procedure "A" above and the name of the Presenting Agent. Before accepting any offer to purchase a Certificated Note to be settled in less than three Business Days, the Company shall verify that the Trustee will have adequate time to prepare and authenticate such Note.
C. The Company will deliver to Trustee a pre-printed four- ply packet for such Certificated Note, which packet will contain the following documents in forms that have been approved by Company, the Agents and the Trustee:
1. Certificated Note with customer confirmation.
2. Stub One - For Trustee.
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Company.
D. The Trustee will prepare such Certificated Note and will authenticate such Certificated Note on the settlement date and deliver it (with the confirmation) and Stubs One and Two to the Presenting Agent, all in accordance with the written directions (or oral instructions confirmed in writing on the next Business Day) of the Company, and the Presenting Agent will acknowledge receipt of the Note by stamping or otherwise marking Stub One and returning it to the Trustee. Such delivery will be made only against such acknowledgment of receipt. In the event that the instructions given by the Presenting Agent for payment to the account of the Company are revoked, the Company will as promptly as possible wire transfer to the account of the Presenting Agent an amount of immediately available funds equal to the amount of such payment made.
E. The Presenting Agent will deliver such Certificated
Note (with the confirmation) to the customer against payment in immediately payable funds. The Presenting Agent will obtain the acknowledgement of receipt of such Certificated Note by retaining Stub Two.
F. Trustee will send Stub Three to the Company by first-
class mail.
Settlement For orders of Certificated Notes solicited by any Agent, as
- ---------- agent, and accepted by the Company, Settlement Procedures
Procedures "A" through "F" set forth above shall be completed on or
- ---------- before the respective times (New York City time) set forth
Timetable: below:
- ---------
|
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on the day before
settlement
B-C 3:00 P.M. on the day before
settlement
D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
|
Failure to If a purchaser fails to accept delivery of and make payment
- ---------- for any Certificated Note, the Presenting Agent will notify
Settle: the Company and Trustee by telephone and return such
- ------ Certificated Note to the Trustee. Upon receipt of such
notice, the Company will immediately wire transfer to the
account of the Presenting Agent an amount equal to the
amount previously credited to the account of Company in
respect of such Certificated Note. Such wire transfer will
be made on the settlement date, if possible, and in any
event not later than the Business Day following the
settlement date. If the failure shall have occurred for any
reason other than a default by the Presenting Agent in the
performance of its obligations hereunder and under the
Agency Agreement, then the Company will reimburse the
Presenting Agent or Trustee as appropriate, on an equitable
basis for its loss of the use of the funds during the period
when they were credited to the account of the Company.
Immediately upon receipt of the Certificated Note in respect
of which such failure occurred, the Trustee will cancel such
Certificated Note in accordance with the Indenture and so
advise the Company and Trustee will make appropriate entries
in its records and send such cancelled note or other
evidence of cancellation in accordance with the terms of the
indenture.
Trustee Not to Nothing herein shall be deemed to require the Trustee to
- -------------- risk or expend its own funds in connection with any payment
Risk Funds: to the Company, the Agents or the purchaser, it being
- ---------- understood by all parties that payments made by the Trustee
to the Company, the Agents or the purchaser shall be made
only to the extent that funds are provided to the Trustee
for such purpose.
|
Payment of Each Agent shall forward to the Company, on a monthly basis,
- ---------- a statement of the out-of-pocket expenses incurred by such
Expenses: Agent during that month that are reimbursable to it pursuant
- -------- to the terms of the Agency Agreement. The Company will remit
payment to the Agents currently on a monthly basis.
Advertising Costs: The Company will determine with the Agents the amount of
- ----------------- advertising that may be appropriate in soliciting orders to
purchase the Certificated Notes. Advertising expenses will
be paid by the Company.
Periodic Periodically, Trustee will send to the Company a
- -------- statement setting forth the principal amount of Certificated
Statements Notes Outstanding as of that date and setting forth a brief
- ---------- description of any sales of Certificated Notes which the
from Trustee: Company has advised Trustee but which have not yet been
- ------------ settled.
|
EXHIBIT B
Energen Corporation
Medium-Term Notes
Due Nine Months or More
from Date of Issue
TERMS AGREEMENT
, 199
Attention:
Subject in all respects to the terms and conditions of the Selling Agency Agreement (the "Agreement") dated ___________, 1996, between [Agent's Name(s)] and you, the undersigned agrees to purchase the following Notes of Energen Corporation:
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
purchase Price: % of Principal Amount [plus
accrued interest from
, 199 ]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in
the requirements to
deliver the documents
specified in Section 6(b)
|
of the Agreement: |
Period during which additional
Notes may not be sold pursuant
to Section 4(m) of the Agreement:
[Purchaser]
Accepted:
Energen Corporation
Exhibit 1(b)
Energen Corporation
Form of Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Dear Sirs:
Energen Corporation, an Alabama corporation (the "Company"), proposes to sell to the underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the "Representatives") are acting as representatives, (a) the number of shares of Common Stock, $.01 par value, of the Company ("Common Stock"), set forth in Schedule I hereto (the "Underwritten Securities") and (ii) an option described in Section 2 hereof to purchase all or any part of the number of additional shares of Common Stock to cover overallotments as is specified in Schedule I hereto (the "Option Securities"; the Option Securities, together with the Underwritten Securities, being hereinafter called the "Securities"). If the firm or firms listed in schedule II hereto include only the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and "Representatives," as used herein, shall each be deemed to refer to such firm or firms.
(a) If the offering of the Securities is a Delayed Offering (as specified in Schedule I hereto), paragraph (i) below is applicable and, if the offering of the Securities is a Non-Delayed Offering (as so specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933 (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement (the file number of which is set forth in Schedule I hereto) on such Form, including a basic prospectus, for registration under the Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, and may have used
a Preliminary Final Prospectus, each of which has previously been furnished to you. Such registration statement, as so amended, has become effective. The offering of the Securities is a Delayed Offering and, although the Basic Prospectus may not include all the information with respect to the Securities and the offering thereof required by the Act and the rules thereunder to be included in the Final Prospectus, the Basic Prospectus includes all such information required by the Act and the rules thereunder to be included therein as of the Effective Date. The Company will next file with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the form of prospectus included in such registration statement relating to the Securities and the offering thereof. As filed, such final prospectus supplement shall include all required information with respect to the Securities and the offering thereof and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Final Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein.
(ii) The Company meets the requirements for the use of Form S-3 under the Act and has filed with the Commission a registration statement (the file number of which is set forth in Schedule I hereto) on such Form, including a basic prospectus, for registration under the Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, including a Preliminary Final Prospectus, each of which has previously been furnished to you. The Company will next file with the Commission either (x) a final prospectus supplement relating to the Securities in accordance with Rules 430A and 424(b)(1) or (4), or (y) prior to the effectiveness of such registration statement, an amendment to such registration statement, including the form of final prospectus supplement. In the case of clause (x), the Company has included in such registration statement, as amended at the Effective Date, all information (other than Rule 430A Information) required by the Act and the rules thereunder to be included in the Final Prospectus with respect to the Securities and the offering thereof. As filed, such final prospectus supplement or such amendment and form of final prospectus supplement shall contain all Rule 430A Information, together with all other such required information, with respect to the Securities and the offering thereof and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Final Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein.
(c) The terms which follow, when used in this Agreement, shall have the meanings indicated. The term "the Effective Date" shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or become effective and each date after the date hereof on which a document incorporated by reference in the Registration Statement is filed. "Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto. "Basic Prospectus" shall mean the prospectus referred to in paragraph (a) above contained in the Registration Statement at the Effective Date including, in the case of a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean any preliminary prospectus supplement to the Basic Prospectus which describes the Securities and the offering thereof and is used prior to filing of the Final Prospectus. "Final Prospectus" shall mean the prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b) after the Execution Time, together with the Basic Prospectus or, if, in the case of a Non- Delayed offering, no filing pursuant to Rule 424(b) is required, shall mean the form of final prospectus relating to the Securities, including the Basic Prospectus, included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean the registration statement referred to in paragraph (a) above, including incorporated documents, exhibits and financial statements, as amended at the Execution Time (or, if not effective at the Execution Time), in the form in which it shall become effective) and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date (as hereinafter defined), shall also mean such registration statement as so amended. Such term shall include any Rule 430A Information deemed to be included therein at the Effective Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or regulation under the Act. "Rule 430A Information" means information with respect to the Securities and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A. Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms "amend", "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated there by reference. A "Non-Delayed Offering" shall mean an offering of securities which is intended to commence promptly after the effective date of a registration statement, with the result that, pursuant to Rules 415 and 430A, all information (other than Rule 430A Information) with respect to the securities so offered must be included in such registration statement at the effective date thereof. A "Delayed Offering" shall mean an offering of securities pursuant to Rule 415 which does not commence promptly after the effective date of a registration statement, with the result that only information required pursuant to Rule 415 need be included in such registration statement at the effective date thereof with respect to the securities so offered. Whether the offering of the Securities is a Non-Delayed Offering or a Delayed Offering shall be set forth in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to the number of shares of Option Securities set forth in Schedule I hereto at the same purchase price per share as the Underwriters shall pay for the Underwritten Securities. Said option may be exercised only to cover over-allotments in the sale of the Underwritten Securities by the Underwriters. Said option may be exercised in whole or in part at any time (but not more than once) on or before the 30th day after the date of the Prospectus upon written or telegraphic notice by the Representatives to the Company setting forth the number of shares of the Option Securities as to which the several Underwriters are exercising the option and the settlement date. Delivery of certificates for the shares of Option Securities, and payment therefor, shall be made as provided in Section 3 hereof. The number of shares of the Option Securities to be purchased by each Underwriter shall be the same percentage of the total number of shares of the Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional shares.
The Company agrees to have the Securities available for inspection, checking and packaging by the Representatives in New York, New York, not later than 1:00 PM on the business day prior to the Closing Date.
If the option provided for in Section 2(b) hereof is exercised after the second business day prior to the Closing Date, the Company will deliver (at the expense of the Company) to the Representatives, at [address] on the date specified by the Representatives (which shall be within three business days after exercise of said option), certificates for the Option Securities in such names and denominations as the Representatives shall have requested against payment of the purchase price thereof to or upon the order of the Company by certified or official bank check or checks drawn on or by a New York Clearing House bank and payable in next day funds. If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to the Representatives on the settlement date for the Option Securities, and the obligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 5 hereof.
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (vi) of the receipt by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is required to be delivered under the-Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (i) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or effect such compliance and (ii) supply any supplemented Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay the fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 12:00 Noon on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on
such date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion of Bradley, Arant, Rose & White, counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Alabama, with full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify does not have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and its subsidiaries taken as a whole;
(ii) each of Alabama Gas Corporation and Taurus Exploration, Inc. (individually, a "Subsidiary" and collectively, the "Subsidiaries") has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, will full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify does not have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and its subsidiaries as a whole; and all outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued, and are fully paid and nonassessable, and are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or
encumbrances (with the exception of those encumbrances in the Indenture dated ___________, 1996 between the Company and The Bank of New York, as trustee);
(iii) the Company's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms to the description thereof contained in the Final Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities are duly authorized for listing, subject to official notice of issuance, on the New York Stock Exchange; the certificates for the Securities conform to the requirements of Alabama law; and the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or, to the knowledge of counsel, similar rights to subscribe for the Securities;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Final Prospectus describing any material contracts or agreements relating to the Company fairly summarize such matters;
(v) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules thereunder;
(vi) although such counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility, for the accuracy or completeness of the statements in the Registration Statement or the Final Prospectus, nothing has come to the attention of such counsel that has caused them to believe that at the Effective Date the Registration Statement contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein, or necessary to make the statements therein not misleading or that the Final Prospectus includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and the notes thereto and the schedules and other financial and statistical data included in the Registration Statement or the Final Prospectus);
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by- laws of the Company or the Subsidiaries or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or the Subsidiaries is a party or bound or any judgment, order or decree known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries;
(x) to the knowledge of such counsel after due inquiry, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(xi) the Company has filed an annual exemption statement on Form U- 3A-2 pursuant to Rule 2 under the Public Utility Holding Company Act of 1935 (the "1935 Act"), and the Company is exempt from all of the provisions of the 1935 Act except Section 9(a)(2) of the 1935 Act and, to the knowledge of such counsel after due inquiry, has received no notice, request or inquiry from the Commission terminating or threatening to terminate or questioning such exemption.
In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Winthrop, Stimson, Putnam & Roberts, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Coopers & Lybrand shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations;
reveal matters of significance with respect to the comments made in such letter), nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; and that any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles;
(2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Final Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Final Prospectus, or for the period from the date of the most recent financial statements included or incorporated in the Registration Statement and the Final Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or
(3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Final Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items [1, 2, 6, 7 and 11] of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of operations" included or incorporated in the Company's Quarterly Reports on Form 10-Q, incorporated in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are included or incorporated in the Registration Statement and the Final Prospectus, on the basis of a reading of the unaudited pro forma financial statements, carrying out certain specified procedures, inquiries of certain officials of the Company who have responsibility for financial and accounting matters, and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution Time, Coopers & Lybrand shall have furnished to the Representatives a letter or letters, dated as of the Execution Time, in form and substance satisfactory to the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in
paragraph (e) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business or properties of the Company and its subsidiaries the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be delivered at the office of Winthrop, Stimson, Putnam & Roberts, counsel for the Underwriters, at One Battery Park Plaza, New York, New York, on the Closing Date.
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page and under the heading "Underwriting" or "Plan of Distribution" in any Preliminary Final Prospectus or the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to in the foregoing indemnity, and you, as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such
consent, or if there be a final judgment for the plaintiff in any such action,
suit or proceeding, the Company agrees to indemnify and hold harmless any
indemnified party, but only to the extent provided in paragraph (a) of this
Section 7, from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
each case to the applicable terms and conditions of this paragraph (d).
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
Very truly yours,
Energen Corporation
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[Names of Representatives]
By: [Lead Representative]
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
or
[Lead Representative]
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Amount and Purchase Price of Securities:
Number of Underwritten Securities:
Number of Option Securities:
Purchase price per share:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed Offering]
Date referred to in Section 4(f) after which the Company may offer or sell additional Common Stock or securities convertible into, or exchangeable for, shares of Common Stock without the consent of the Representative(s):
Modification of items to be covered by the letter from [name of accountants] delivered pursuant to Section 5(e) at the Execution Time:
SCHEDULE II
Number of Shares
Underwriters to be Purchased
------------ ----------------
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SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Energen Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on
___________, 19__ (the "Delivery Date"), $________ principal amount of the
Company's ________________ (the "Securities") offered by the Company's
Prospectus dated _______________, 19__, and related Prospectus Supplement dated
_______________, 19__, receipt of a copy of which is hereby acknowledged, at a
purchase price of ___% of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from _____________,
19__, to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made on or before 11:00 A.M., New York City time, on the Delivery Date to or upon the order of the Company in New York Clearing House (next day) funds, at your office or at such other place as shall be agreed between the Company and the undersigned, upon delivery to the undersigned of the Securities in definitive fully registered form and in such authorized denominations and registered in such names as the undersigned may request by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date. If no request is received, the Securities will be registered in the name of the undersigned and issued in a denomination equal to the aggregate principal amount of Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the
undersigned is subject, and (2) the Company, on or before the Delivery Date, shall have sold to certain underwriters (the "Underwriters") such principal amount of the Securities as is to be sold to them pursuant to the Underwriting Agreement referred to in the Prospectus and Prospectus Supplement mentioned above. Promptly after completion of such sale to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith. The obligation of the undersigned to take delivery of and make payment for the Securities, and the obligation of the Company to cause the Securities to be sold and delivered, shall not be affected by the failure of any purchaser to take delivery of and make payment for the Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar contracts is in the Company's sole discretion and, without limiting the foregoing, need not be on a first come, first served basis. If this contract is acceptable to the Company, it is required that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned, as of the date first above written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the laws of the State of New York.
Very truly yours,
Accepted:
Energen Corporation
ENERGEN CORPORATION
TO
THE BANK OF NEW YORK
as Trustee
INDENTURE
Dated as of ___________ __, 1996
ENERGEN CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of ___________ __, 1996
Trust Indenture Act Section Indenture Section
(S) 310(a)(1) .................... 909
(a)(2) .................... 909
(a)(3) .................... Not Applicable
(a)(4) .................... Not Applicable
(a)(5) .................... 909
(b) .................... 908
(c) .................... Not Applicable
(S) 311(a) .................... 913(c)
(b) .................... 913(b)
(b)(2) .................... 1003(a)(2)
.................... 1003(b)
(c) .................... Not Applicable
(S) 312(a) .................... 1001
.................... 1002(a)
(b) .................... 1002(b)
(c) .................... 1002(c)
(S) 313(a) .................... 1003(a)
(b) .................... 1003(b)
(c) .................... 1003(c)
(c)(2) .................... Not Applicable
(d) .................... 1003(d)
(S) 314(a)(4) .................... 606
(b) .................... Not Applicable
(c)(1) .................... 102
(c)(2) .................... 102
(c)(3) .................... Not Applicable
(d) .................... 1003
(e) .................... 102
(S) 315(a) .................... 901(a)
(b) .................... 902
.................... 1003(a)(6)
(c) .................... 901(b)
(d) .................... 901(c)
(d)(1) .................... 901(a)(1)
(d)(2) .................... 901(c)(2)
(d)(3) .................... 901(c)(3)
(e) .................... 814
(S) 316(a) last sentence................ 101
(a)(1)(A) .................... 812
(a)(1)(B) .................... 813
(a)(2) .................... Not Applicable
(b) .................... 808
(S) 317(a)(1) .................... 803
(a)(2) .................... 804
(b) .................... 603
(S) 318(a) .................... 607
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TABLE OF CONTENTS
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions........................................... 1
Section 102. Compliance Certificates and Opinion................... 8
Section 103. Form of Documents Delivered to Trustee................ 9
Section 104. Acts of Holders....................................... 10
Section 105. Notices, Etc. to Trustee and Company.................. 11
Section 106. Notice to Holders of Securities; Waiver............... 12
Section 107. Conflict with Trust Indenture Act..................... 12
Section 108. Effect of Headings and Table of Contents.............. 12
Section 109. Successors and Assigns................................ 13
Section 110. Separability Clause................................... 13
Section 111. Benefits of Indenture................................. 13
Section 112. Governing Law......................................... 13
Section 113. Legal Holidays........................................ 13
ARTICLE TWO
Security Forms
Section 201. Forms Generally....................................... 14
Section 202. Form of Trustee's Certificate of
Authentication........................................ 14
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.................. 15
Section 302. Denominations......................................... 18
Section 303. Execution, Authentication, Delivery and
Dating................................................ 18
Section 304. Temporary Securities.................................. 21
Section 305. Registration, Registration of Transfer and
Exchange.............................................. 22
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities............................................ 23
Section 307. Payment of Interest; Interest Rights
Preserved............................................. 24
Section 308. Persons Deemed Owners................................. 25
Section 309. Cancellation.......................................... 25
Section 310. Computation of Interest............................... 26
Section 311. Payment to Be in the Proper Currency.................. 26
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ARTICLE FOUR
Redemption of Securities
Section 401. Applicability of Article............................... 26
Section 402. Election to Redeem; Notice to Trustee.................. 26
Section 403. Selection of Securities to Be Redeemed................. 27
Section 404. Notice of Redemption................................... 27
Section 405. Securities Payable on Redemption Date.................. 28
Section 406. Securities Redeemed in Part............................ 29
ARTICLE FIVE
Sinking Funds
Section 501. Applicability of Article............................... 29
Section 502. Satisfaction of Sinking Fund Payments with
Securities............................................. 30
Section 503. Redemption of Securities for Sinking Fund.............. 30
ARTICLE SIX
Covenants
Section 601. Payment of Principal, Premium and Interest............. 31
Section 602. Maintenance of Office or Agency........................ 31
Section 603. Money for Securities Payments to Be
Held in Trust.......................................... 32
Section 604. Corporate Existence.................................... 33
Section 605. Maintenance of Properties.............................. 33
Section 606. Statement as to Compliance; Notice of Certain
Defaults............................................... 34
Section 607. Waiver of Certain Covenants............................ 34
Section 608. Restriction on Liens................................... 35
Section 609. Restrictions on Sale and
Lease-Back Transactions................................ 38
ARTICLE SEVEN
Satisfaction and Discharge
Section 701. Satisfaction and Discharge of Indenture................ 39
Section 702. Legal and Covenant Defeasance.......................... 40
Section 703. Application of Trust Money............................. 44
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ARTICLE EIGHT
Events of Default; Remedies
Section 801. Events of Default..................................... 44
Section 802. Acceleration of Maturity; Rescission and
Annulment............................................. 46
Section 803. Collection of Indebtedness and Suits for
Enforcement by Trustee................................ 47
Section 804. Trustee May File Proofs of Claim...................... 48
Section 805. Trustee May Enforce Claims Without Possession
of Securities......................................... 49
Section 806. Application of Money Collected........................ 49
Section 807. Limitations on Suits.................................. 49
Section 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest....................... 50
Section 809. Restoration of Rights and Remedies.................... 50
Section 810. Rights and Remedies Cumulative......................... 52
Section 811. Delay or Omission Not Waiver........................... 52
Section 812. Control by Holders of Securities....................... 52
Section 813. Waiver of Past Defaults................................ 53
Section 814. Undertaking for Costs.................................. 53
ARTICLE NINE
The Trustee
Section 901. Certain Duties and Responsibilities................... 54
Section 902. Notice of Defaults.................................... 55
Section 903. Certain Rights of Trustee............................. 55
Section 904. Not Responsible for Recitals or Issuance of
Securities............................................ 57
Section 905. May Hold Securities................................... 57
Section 906. Money Held in Trust................................... 57
Section 907. Compensation and Reimbursement........................ 57
Section 908. Disqualification; Conflicting Interests............... 58
Section 909. Corporate Trustee Required; Eligibility............... 65
Section 910. Resignation and Removal; Appointment of
Successor............................................. 65
Section 911. Acceptance of Appointment by Successor................ 67
Section 912. Merger, Conversion, Consolidation or
Succession to Business................................ 68
Section 913. Preferential Collection of Claims
Against Company........................................ 69
Section 914. Appointment of Authenticating Agent.................... 73
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ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
Section 1001. Company to Furnish Trustee Names and
Addresses of Holders.................................. 75
Section 1002. Preservation of Information;
Communications to Holders............................. 75
Section 1003. Reports by Trustee.................................... 77
Section 1004. Reports by Company.................................... 78
ARTICLE ELEVEN
Consolidation, Merger, Conveyance, Transfer or Lease
Section 1102. Successor Corporation Substituted...................... 80
ARTICLE TWELVE
Supplemental Indentures
Section 1201. Supplemental Indentures Without Consent
of Holders............................................ 80
Section 1202. Supplemental Indentures with Consent of
Holders............................................... 82
Section 1203. Execution of Supplemental Indentures.................. 84
Section 1204. Effect of Supplemental Indentures..................... 84
Section 1205. Conformity With Trust Indenture Act................... 84
Section 1206. Reference in Securities to Supplemental
Indentures............................................ 84
Section 1207. Modification Without Supplemental
Indenture............................................. 85
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
Section 1301. Purposes for Which Meetings
May Be Called......................................... 85
Section 1302. Call, Notice and Place of Meetings.................... 85
Section 1303. Persons Entitled to Vote at Meetings.................. 86
Section 1304. Quorum; Action........................................ 86
Section 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings........................................... 88
Section 1306. Counting Votes and Recording Action of
Meetings.............................................. 89
Section 1307. Action Without Meeting................................ 89
Section 1308. Fixing of Record Date................................. 89
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ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
Section 1401. Liability Solely Corporate............................. 90
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Exhibit 4(i)
INDENTURE dated as of _____________, 1996, between ENERGEN CORPORATION, a corporation duly organized and existing under the laws of the State of Alabama (herein called the "Company"), having its principal office at 2101 Sixth Avenue North, Birmingham, Alabama 35203, and The Bank of New York, a state banking corporation organized under the laws of the State of New York and having its principal corporate trust office at ____________, _____________, as trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided; and all other things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE ONE
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America, and except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date of such computation; provided however, that in determining generally accepted accounting principles applicable to the Company, the Company shall, to the extent required, conform to any order, rule or regulation of any administrative agency, regulatory authority or other governmental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in that Article.
"Act", when used with respect to any Holder of a Security, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person or Persons authorized by the Trustee to act on behalf of the Trustee to authenticate one or more series of Securities.
"Board of Directors" means either the board of directors of the Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of Payment or any other particular location specified in the Securities or this Indenture, means any day, other than a Saturday or Sunday, which is not a day on which banking institutions and trust companies in such Place of Payment or other location are generally authorized or required by law, regulation or executive order to remain closed, except as may be otherwise specified as contemplated by Section 301.
"Capital Stock" means, with respect to any Person, any and all shares, interests, participation or other equivalents
(however designated, whether voting or non-voting) of such Person's capital stock, whether now outstanding or issued after the date of this Indenture, including, without limitation, all common stock and preferred stock.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this instrument such Commission is not existing and performing such duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Controller, its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date of execution of this Indenture is located at 10161 Centurion Parkway, Towermarc Plaza, 2nd Floor, Jacksonville, FL 32256, Attention: Sandra Carreker.
"Corporation" means a corporation, association, company, joint stock company, limited liability company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in United States Dollars, Government Obligations; or
(b) with respect to Securities denominated in a currency other than United States Dollars or in a composite currency, such other obligations or instruments as shall be specified with respect to such Securities, as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 801.
"Funded Debt" means all indebtedness of a Person that by its terms or by the terms of any instrument or agreement relating thereto matures more than one year from, or is directly or indirectly renewable or extendable at the option of such Person to a date more than one year from the date of creation thereof (including an option of such Person under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of one year or more), but excluding any payments due under the terms thereof within 12 months of any date of determination (including any deposit or payment required to be made under any prepayment provision, sinking fund, purchase fund or similar provision).
"Government Obligations" means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments which evidence a direct ownership interest in obligations described in clause (a) above or in any specific interest or principal payments due in respect thereof; provided, however, that the custodian of such obligations or specific interest or principal payments shall be a bank or trust company subject to Federal or state supervision or examination with a combined capital and surplus of at least $50,000,000; and provided, further, that except as may be otherwise required by law, such custodian shall be obligated to pay to the holders of such certificates, depositary receipts or other instruments the full amount received by such custodian in respect of such obligations or specific payments and shall not be permitted to make any deduction therefrom.
"Holder" means a Person in whose name a Security is registered in the Security Register.
"Indenture" means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity, declaration of acceleration, upon call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the Board, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 802.
"Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with Section 701; and
(c) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it and the Company that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether or not the Holders of the requisite principal amount of the Securities Outstanding under this Indenture, or the Outstanding Securities of any series or Tranche, have given any request, demand, authorization, direction, notice, consent or waiver hereunder or whether or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor (unless the Company, such Affiliate
or such obligor owns all Securities Outstanding under this Indenture, or all Outstanding Securities of each such series and each such Tranche, as the case may be, determined without regard to this clause (x)) shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver or upon any such determination as to the presence of a quorum, only Securities which the Trustee knows to be so owned shall be so disregarded; provided, however, that Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor;
(y) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 802; and
(z) the principal amount of any Security which is denominated in a currency other than U.S. Dollars or in a composite currency that shall be deemed to be Outstanding for such purposes shall be the amount of U.S. Dollars which could have been purchased by the principal amount (or, in the case of an Original Issue Discount Security, the U.S. Dollar equivalent on the date determined as set forth below of the amount determined as provided in (y) above) of such currency or composite currency evidenced by such Security, in each such case certified to the Trustee in an Officers' Certificate based (i) on the average of the mean of the buying and selling spot rates quoted by three banks which are members of the New York Clearing House Association selected by the Company in effect at 11:00 A.M. (New York time) in The City of New York on the fifteenth Business Day preceding any such determination or (ii) if on such fifteenth Business Day it shall not be possible or practicable to obtain such quotations from such three banks, on such other quotations or alternative methods of determination which shall be as consistent as practicable with the method set forth in (i) above.
"Paying Agent" means any Person, including the Company, authorized by the Company to pay the principal of and premium, if any, or interest, if any, on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from time to time the specific terms of which
Securities, including without limitation the rate or rates of interest, if any, thereon, the Stated Maturity or Maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, trust or unincorporated organization or any government or any political subdivision, instrumentality or agency thereof.
"Place of Payment", when used with respect to the Securities of any series, means the place or places, specified as contemplated by Section 301, at which, subject to Section 602, the principal of and premium, if any, and interest, if any, on the Securities of such series are payable.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee, means any officer in the corporate trust department of the Trustee or any other officer of the Trustee customarily performing functions similar to those performed by any such officer and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture and more particularly means any securities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings specified in Section 305.
"Significant Subsidiary" means each of Alabama Gas Corporation, an Alabama corporation, and Taurus Exploration, Inc., an Alabama corporation, or their respective successors by merger, consolidation, sale of assets or otherwise.
"Special Record Date" for the payment of any Defaulted Interest on the Securities of any series means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
"Tranche" means a group of Securities which (a) are of the same series and (b) have identical terms except as to principal amount and date of issuance.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided in Section 1205.
"United States" means the United States of America, its territories, its possessions and other areas subject to its jurisdiction.
Except as otherwise expressly provided in this Indenture, upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall, if requested by the Trustee, furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular
application or request, no certificate or opinion need be furnished except as specifically contemplated by such provision of this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
(a) Any request, demand, authorization, direction, notice, consent, election, waiver or other action provided by this Indenture to be made, given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing or, alternatively, may be embodied in and evidenced by the record of Holders voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders duly called and held in accordance with the provisions of Article Thirteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments and so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 901) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders shall be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof or may be proved in any other manner which the Trustee and the Company deem sufficient. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated in clause
(y) of the proviso to the definition of "Outstanding") and serial numbers of
Securities held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, election, waiver or other Act of a Holder shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been delivered to the Trustee with respect to the requisite percentage of principal amount of Securities for the action contemplated by such instruments, any such instrument executed and delivered by or on behalf of a Holder may be revoked with respect to any or all of such Securities by written notice by such Holder or any subsequent Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated and delivered after any Act of Holders may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any action taken by such Act of Holders. If the Company shall so determine, new Securities of any series, or any Tranche thereof, so modified as to conform, in the opinion of the Trustee and the Company, to such action may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on the record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of the Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of the record date.
Any request, demand, authorization, direction, notice, consent, election, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its Treasurer, at 2101 Sixth Avenue North, Birmingham, Alabama 35203, or at any other address previously furnished in writing to the Trustee by the Company.
Except as otherwise expressly provided herein, where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given, and shall be deemed given, to Holders if in writing and mailed, first class postage prepaid, to each Holder affected by such event, at the address of such Holder as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing by the Person entitled to receive such notice, either before or after the event otherwise to be specified therein, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
If any provision of this Indenture limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
The Article and Section headings in this Indenture and the Table of Contents are for convenience only and shall not affect the construction hereof.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
In case any provision in this Indenture or the Securities shall be invalid, illegal or unenforceable, the validly, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Nothing in this Indenture or the Securities, express or implied, shall give to any Person, other than the parties hereto, their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities other than a provision in Securities of any series, or any Tranche thereof, or in the Board Resolution or Officers' Certificate which establishes the terms of such Securities or Tranche, which specifically states that such provision shall apply in lieu of this Section) payment of interest or principal and premium, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and, if such payment is made or duly provided for on such Business Day, that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, to such Business Day.
ARTICLE TWO
The definitive Securities of each series shall be in substantially the forms thereof established in Board Resolutions or Officers' Certificates pursuant to Board Resolutions, or in indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. If the forms of Securities of any series are established in a Board Resolution or in an Officers' Certificate pursuant to a Board Resolution, such Board Resolution and Officers' Certificate, if any, shall be delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities.
The Securities of each series shall be issuable in registered form without coupons. The definitive Securities shall be produced in such manner as shall be determined by the officers executing such Securities, as evidenced by their execution thereof.
The Trustee's certificate of authentication shall be in substantially the form set forth below:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
By:______________________________
Authorized Signatory
ARTICLE THREE
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject to the last paragraph of this Section, there shall be established in a Board Resolution or in an Officers' Certificate pursuant to a Board Resolution, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(a) the title of the Securities of such series (which shall distinguish the Securities of such series from Securities of all other series);
(b) any limit upon the aggregate principal amount of the Securities of such series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 406 or 1206 and, except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to whom interest on Securities of such series, or any Tranche thereof, shall be payable on any Interest Payment Date, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the Securities of such series is payable;
(e) the rate or rates at which the Securities of such series, or any Tranche thereof shall bear interest, if any (including the rate or rates at which overdue principal, premium or interest shall bear interest, if any), or any method or methods by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on Securities on any Interest Payment Date; and the basis of computation of interest, if other than as provided in Section 310;
(f) the place or places where (1) the principal of and premium, if any, and interest, if any, on Securities of such series, or any Tranche thereof, shall be payable, (2) any Securities of such series, or any Tranche thereof, may be surrendered for registration of transfer, (3) Securities of such series, or any Tranche thereof, may be surrendered for exchange and (4) notices and demands to or upon the Company in respect of the Securities of such series, or any Tranche thereof, and this Indenture may be served;
(g) the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of such series, or any Tranche thereof, may be redeemed, in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem or purchase the Securities of such series, or any Tranche thereof, pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which such Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(i) the denominations in which Securities, if any, of such series, or any Tranche thereof, shall be issuable if other than denominations of $1,000 and any integral multiple thereof;
(j) whether Securities of the series may be issued in whole or in part in global form and, if so, the identity of the depositary for such Securities, in global form, and the terms and conditions, if any, on which interests in such Securities, in global form, may be exchanged, in whole or in part, for the individual securities represented thereby;
(k) if the principal of or premium, if any, or interest, if any, on the Securities of such series, or any Tranche thereof, are to be payable, at the election of the Company or a Holder thereof, in a coin or currency other than that in which the Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made;
(l) the currency or currencies, including composite currencies, in which payment of the principal of and premium, if any, and interest, if any, on the Securities of such series, or any Tranche thereof, shall be payable (if other than the currency of the United States);
(m) if the principal of or premium, if any, or interest on the Securities of such series, or any Tranche thereof, are to be payable, or are to be payable at the election of the Company or a Holder thereof, in securities
or other property, the type and amount of such securities or other property, or the method by which such amount shall be determined, and the period or periods within which, and the terms and conditions upon which, any such election may be made;
(n) if the amount of payments of principal of or premium, if any, or interest, if any, on the Securities of such series, or any Tranche thereof, may be determined with reference to an index, the manner in which such amounts shall be determined;
(o) if other than the principal amount thereof, the portion of the principal amount of Securities of such series, or any Tranche thereof, which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 802;
(p) any Events of Default, in addition to those specified in Section 801, with respect to the Securities of such series, and any covenants of the Company for the benefit of the Holders of the Securities of such series, or any Tranche thereof, in addition to those set forth in Article Six;
(q) the terms, if any, pursuant to which the Securities of such series, or any Tranche thereof, may be converted into or exchanged for shares of capital stock or other securities of the Company;
(r) the obligations or instruments, if any, which shall be considered to be Eligible Obligations in respect of the Securities of such series, or any Tranche thereof, denominated in any currency other than United States Dollars or in a composite currency, and any additional or alternative provisions for the reinstatement of the Company's indebtedness in respect of such Securities after the satisfaction and discharge thereof as provided in Section 701;
(s) if a service charge will be made for the registration of transfer or exchange of Securities of such series, or any Tranche thereof, the amount or terms thereof;
(t) any exceptions to Section 113, or variation in the definition of Business Day, with respect to the Securities of such series, or any Tranche thereof; and
(u) any other terms of the Securities of such series, or any Tranche thereof, not inconsistent with the provisions of this Indenture.
If any of the terms of the series are established in a Board Resolution or in an Officers' Certificate pursuant to a Board
Resolution, such Board Resolution and Officers' Certificate, if any, shall be delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities. With respect to Securities of a series subject to a Periodic Offering, such Board Resolution or Officer's Certificate may provide general terms or parameters for Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order or that such terms shall be determined by the Company or its agents in accordance with a Company Order as contemplated by the proviso of the third paragraph of Section 303.
Unless otherwise provided as contemplated by Section 301 with respect to any series of Securities, the Securities of each series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication and delivery, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided, however, that, with respect to Securities of a series subject to a Periodic Offering, (a) such Company Order may be delivered by the Company to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, all pursuant to a Company Order or pursuant to such
procedures acceptable to the Trustee as may be specified from time to time by a Company Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by Company Order or pursuant to such procedures and (d) if provided for in such procedures, such Company Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in writing.
In authenticating Securities of any series, and accepting responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 901) shall be fully protected in relying upon, an Opinion of Counsel stating
(a) that the forms of such Securities have been duly authorized by the Company and have been established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been duly authorized by the Company and have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and issued and delivered by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture and will constitute valid and legally binding obligations of the Company, entitled to the benefits provided by this Indenture, and enforceable against the Company in accordance with their terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other laws affecting creditors' rights generally, and to general principles of equity and doctrines applicable thereto (including, but not limited to, all matters of public policy);
provided, however, that, with respect to Securities of a series subject to a Periodic Offering, the Trustee shall be entitled to receive such Opinion of Counsel only once at or prior to the time of the first authentication of Securities of such series and that the opinions described in clauses (b) and (c) above may, alternatively, state, respectively,
(x) that, when the terms of such Securities shall have been established pursuant to a Company Order or pursuant to such procedures as may be specified from time to time by a Company Order, all as contemplated by and in accordance with a Board Resolution or an Officers' Certificate pursuant to a Board Resolution, as the case may be, such terms will have been duly authorized by the Company and will have been
established in conformity with the provisions of this Indenture; and
(y) that such Securities, when (1) executed by the Company, (2) authenticated and delivered by the Trustee in accordance with this Indenture, (3) issued and delivered by the Company and (4) paid for, all as contemplated by and in accordance with the aforesaid Company Order or specified procedure, as the case may be, will have been duly issued under this Indenture and will constitute valid and legally binding obligations of the Company, entitled to the benefits provided by the Indenture, and enforceable against the Company in accordance with their terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, and to general principles of equity and doctrines applicable thereto (including but not limited to, all matters of public policy).
With respect to Securities of a series subject to a Periodic Offering, the Trustee may conclusively rely, as to the authorization by the Company of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and other documents delivered pursuant to Sections 201 and 301 and this Section, as applicable, at or prior to the time of the first authentication of Securities of such series unless and until such opinion or other documents have been superseded or revoked. In connection with the authentication and delivery of securities of a series subject to a Periodic Offering, the Trustee shall be entitled to assume that the Company's instructions to authenticate and deliver such Securities do not violate any rules, regulations or orders of any governmental agency or commission having jurisdiction over the Company.
If the form or terms of the Securities of any series have been established by or pursuant to a Board Resolution as permitted by Sections 201 or 301, the Trustee shall not be required to authenticate such Securities if the issuance of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee or its agent by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder to the Company, or any Person acting on its behalf, but shall never have been issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 309 together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits hereof.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities; provided, however, that temporary Securities need not recite specific redemption, sinking fund, conversion or exchange provisions.
If temporary Securities of any series are issued, the Company shall cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company maintained pursuant to Section 602 in a Place of Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor definitive Securities of the same series, of authorized denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder.
The Company shall cause to be kept at the office of the Security Registrar designated pursuant to Section 602 a register (referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and the registration of transfer thereof.
Upon surrender for registration of transfer of any Security of any series at the office or agency of the Company maintained pursuant to Section 602 in a Place of Payment for such series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at any such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee or any transfer agent) be duly endorsed or shall be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar or any transfer agent duly executed by the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in a Board Resolution or an Officers' Certificate pursuant to a Board Resolution, or in an indenture supplemental hereto, with respect to Securities of any series, or any Tranche thereof, no service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required (a) to issue, to register the transfer of or to exchange Securities of any series during a period of 15 days immediately preceding the date notice is given identifying the serial numbers of the Securities of such series called for redemption or (b) to issue, to register the transfer of or to exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series, and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the ownership of and the destruction, loss or theft of any Security and (b) such security or indemnity as may be reasonably required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and any such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, or any Tranche thereof, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the related Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice), and at the same time the Company shall deposit with the Trustee an amount money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall promptly cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at the address of such Holder as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the absolute owner of such Security for the purpose of receiving payment of principal of and premium, if any, and (subject to Sections 305 and 307) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and, if not theretofore cancelled, shall be promptly cancelled by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever or which the Company shall not have issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. Unless the Company shall direct by a Company Order that cancelled Securities be returned to it, all cancelled Securities held by the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a certificate of destruction to the Company upon the Company's request.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360 day year consisting of twelve 30-day months.
In the case of any Securities denominated in any currency other than United States Dollars or in a composite currency (the "Required Currency"), except as otherwise provided therein, the obligation of the Company to make any payment of the principal thereof, or the premium or interest thereon, shall not be discharged or satisfied by any tender by the Company, or recovery by the Trustee, in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the Trustee timely holding the full amount of the Required Currency then due and payable. If any such tender or recovery is in a currency other than the Required Currency, the Trustee may take such actions as it considers appropriate to exchange such currency for the Required Currency. The costs and risks of any such exchange, including without limitation the risks of delay and exchange rate fluctuation, shall be borne by the Company, the Company shall remain fully liable for any shortfall or delinquency in the full amount of Required Currency then due and payable, and in no circumstances shall the Trustee be liable therefor except in the case of its negligence or willful misconduct. The Company hereby waives any defense of payment based upon any such tender or recovery which is not in the Required Currency or which, when exchanged for the Required Currency by the Trustee, is less than the full amount of Required Currency then due and payable.
ARTICLE FOUR
Securities of any series, or any Tranche thereof, which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of such series or Tranche) in accordance with this Article.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or an Officers' Certificate. The Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee) notify the Trustee in
writing of such Redemption Date and of the principal amount of such Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (b) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction or condition.
If less than all the Securities of any series, or Tranche thereof, are to be redeemed, the particular Securities to be redeemed shall be selected by the Security Registrar from the Outstanding Securities of such series or Tranche not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of such series or Tranche or any integral multiple thereof) of the principal amount of Securities of such series or Tranche of a denomination larger than the minimum authorized denomination for Securities of such series or Tranche; provided, however, that if, as indicated in an Officers' Certificate, the Company shall have offered to purchase all Securities then Outstanding of any series, or any Tranche thereof, and less than all of such Securities shall have been tendered to the Company for such purchase, the Trustee, if so directed by Company Order, shall select for redemption all such Securities which have not been so tendered.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected to be redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, notice of redemption shall be given in the manner provided in Section 106 to the Holders to be redeemed not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or Tranche are to be redeemed, the identification of the particular Securities to be redeemed and the portion of the principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be surrendered for payment of the Redemption Price, and
(f) that the redemption is for a sinking fund, if such is the case.
With respect to any notice of redemption of Securities at the election of the Company, unless, upon the giving of such notice, such Securities shall be deemed to have been paid in accordance with Section 701, such notice may state that such redemption shall be conditional upon the receipt by the Trustee, on or prior to the date fixed for such redemption, of money sufficient to pay the principal of and premium, if any, and interest, if any, on such Securities and that if such money shall not have been so received such notice shall be of no force or effect and the Company shall not be required to redeem such Securities. In the event that such notice of redemption contains such a condition and such money is not so received, the redemption shall not be made and within a reasonable time thereafter notice shall be given, in the manner in which the notice of redemption was given, that such money was not so received and such redemption was not required to be made.
Notice of redemption of Securities to be redeemed at the election of the Company, and any notice of non-satisfaction of a condition for redemption as aforesaid, shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company.
Notice of redemption having been given as aforesaid, and the conditions, if any, set forth in such notice having been satisfied, the Securities or portions thereof so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless, in the case of an unconditional notice of redemption, the Company shall default in the payment of the Redemption Price and accrued interest, if any) such Securities or portions thereof, if interest-bearing, shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided, however, that any installment of interest on any Security the Stated Maturity of which installment is on or prior to the Redemption Date shall be payable to the Holder of such Security, or one or more Predecessor Securities, registered as such at the close of business on the related Regular Record Date according to the terms of such Security or Predecessor Security and subject to the provisions of Section 307.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a new Security or Securities of the same series, of any authorized denomination requested by such Holder and of like tenor and in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE FIVE
The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of any series, or any Tranche thereof, except as otherwise specified as contemplated by Section 301 for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series, or any Tranche thereof, is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Securities of any series, or any Tranche thereof, is herein referred to as an "optional sinking fund payment". If provided for by the terms of Securities of any series, or any Tranche thereof, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 502. Each sinking fund payment shall be applied to the redemption of Securities of the series or Tranche in respect of which it was made as provided for by the terms of such Securities.
The Company (a) may deliver Outstanding Securities (other than any previously called for redemption) of a series or Tranche in respect of which a mandatory sinking fund payment is to be made and (b) may apply as a credit Securities of such series or Tranche which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of such mandatory sinking fund payment; provided, however, that no Securities shall be applied in satisfaction of a mandatory sinking fund payment if such Securities shall have been previously so applied. Securities so applied shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
Not less than 45 days prior to each sinking fund payment date for the Securities of any series or any Tranche thereof, the Company shall deliver to the Trustee an Officers' Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund payment which is to be satisfied by delivering and crediting Securities of such series or Tranche pursuant to Section 502 and stating the basis for such credit and that such Securities have not previously been so credited.
and the Company shall also deliver to the Trustee any Securities to be so delivered. If the Company shall not deliver such Officers' Certificate, the next succeeding sinking fund payment for such series or Tranche shall be made entirely in cash in the amount of the mandatory sinking fund payment. Not less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 403 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 404. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 405
and 406.
ARTICLE SIX
The Company shall pay the principal of and premium, if any, and interest, if any, on the Securities of each series in accordance with the terms of such Securities and this Indenture.
The Company shall maintain in each Place of Payment for the Securities
of any series, or any Tranche thereof, an office or agency where such Securities
may be presented or surrendered for payment, where such Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of such Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency and
prompt notice to the Holders of any such change in the manner specified in
Section 106. If at any time the Company shall fail to maintain any such
required office or agency in respect of Securities of any series, or any Tranche
thereof, or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of such Securities may be made and notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands.
Anything herein to the contrary notwithstanding, any office or agency required by this Section may be maintained at an office of the Company in which event the Company shall perform all functions to be performed at such office or agency.
If the Company shall at any time act as its own Paying Agent with respect to the Securities of any series, or any Tranche thereof, it shall, on or before each due date of the principal of and premium, if any, or interest, if any, on any of such Securities, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and premium or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the Securities of any series, or any Tranche thereof, it shall, prior to each due date of the principal of and premium, if any, or interest, if any, on such Securities, deposit with such Paying Agents sums sufficient (without duplication) to pay the principal and premium or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest and (unless such Paying Agent is the Trustee) the Company shall promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for the Securities of any series, or any Tranche thereof, other than the Trustee, to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of and premium, if any, or interest, if, on Securities of such series or Tranche in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of such series or Tranche) in the making of any payment of principal of and premium, if any, or interest, if any, on the Securities of such series or Tranche; and
(c) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of and premium, if any, or interest, if any, on any Security and remaining unclaimed for two years after such principal and premium, if any, or interest has become due and payable shall be paid to the Company on Company Request, or, if then held the Company, shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such payment to the Company, may at the expense of the Company cause to be mailed, on one occasion only, notice to such Holder that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing, any unclaimed balance of such money then remaining will be paid to the Company.
Subject to the rights of the Company under Article Eleven, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the rights (charter and statutory) and franchises of the Company; provided, however, that the Company shall not be required to preserve any such right or franchise if, in the judgment of the Company, (i) the preservation thereof is no longer desirable in the conduct of the business of the Company and (ii) the failure to preserve any such right or franchise will not adversely affect the interests of the Holders of Securities of any series or Tranche in any material respect.
The Company shall cause (or, with respect to property owned in common with others, make reasonable effort to cause) all its properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order and shall cause (or, with respect to property owned in common with others, make reasonable effort to cause) to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as, in the judgment of the Company, may be necessary so that the business carried on in connection
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, a brief
certificate, which need not comply with Section 102, from the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, as to the signer's knowledge of the Company's compliance
with all conditions and covenants under this Indenture. For purposes of this
Section 606, such compliance shall be determined without regard to any period of
grace or requirement of notice provided under any of the provisions of this
Indenture. The Company's fiscal year presently ends on September 30 of each
year.
The Company shall deliver to the Trustee, within 10 days after the occurrence thereof, written notice of any event of which the Company's Chairman of the Board, President, Treasurer or Controller has actual knowledge, which event is, or after notice or lapse of time or both would become, an Event of Default pursuant to Section 801.
The Company may omit in any particular instance to comply with any term, provision or condition set forth in (a) any additional covenant or restrictions specified with respect to the Securities of any series, or any Tranche thereof, as contemplated in Section 301 if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of all series and Tranches with respect to which such covenant or restriction was so specified, considered as one class, shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition and (b) Section 602, 604, 605, 606, 608, 609 or Article Eleven if before the time for such compliance the Holders of at least a majority in principal amount of Securities Outstanding under this Indenture shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition; but, in the case of (a) or (b), no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
The Company shall not hereafter create, assume, incur or suffer to exist any mortgage, lien, pledge, charge or encumbrance of any kind, other than "Excepted Encumbrances," upon any property of the Company, other than "Excepted Property," whether owned as of the date hereof or hereafter acquired, to secure indebtedness without effectively providing that the Securities shall be secured equally and ratably with the indebtedness secured by such mortgage, lien, pledge, charge or encumbrance. Subject to the next succeeding sentence, the restriction contained in this section shall not be applicable to nor prevent the following:
(a) the pledging by the Company of any assets as security for the payment of any tax, assessment or other similar charge demanded of the Company by any governmental authority or public body so long as the Company in good faith contests its liability to pay the same, or as security to be deposited with any governmental authority or public body for any person at any time required by law or governmental regulation as a condition to the transaction of any business or the exercise of any privilege, license or right;
(b) the pledging by the Company of any assets for the purposes of securing a stay or discharge or for any other purpose in the course of any legal proceeding in which the Company or a subsidiary is a party or for the purpose of obtaining insurance coverage or other surety obligations providing for securing such stay or discharge in the event such stay or discharge should be required;
(c) making good faith deposits or providing security in connection with tenders, redemptions, contracts or leases to which the Company is a party or deposits for the purpose of terminating obligations under an indenture;
(d) the pledging by the Company of any assets in connection with the incurrence of indebtedness (under circumstances not otherwise excepted from the operation of this Section) in aggregate principal amount not exceeding five percent (5%) of the assets of the Company as presented in the financial statements of the Company contained in the most recently filed report on Form 10-K or 10-Q (or successor forms thereto) filed with the Commission at the time of such pledge;
(e) liens, pledges, security interests or other encumbrances on property, shares of stock or indebtedness of any corporation existing at the time such corporation
becomes a subsidiary of or is merged into the Company, or existing at the time of acquisition of such property or stock by the Company;
(f) incurring liens, licenses, pledges, security interests or other encumbrances (which shall include, without limitation, purchase money mortgages, conditional sale agreements and other title retention agreements and leases in the nature of title retention agreements) to secure the payment of all or any part of the price of acquisition, construction or improvement of any property or stock acquired by the Company, or to secure any indebtedness incurred by the Company prior to, at the time of, or within 180 days after the later of the acquisition or completion of construction (including any improvements on an existing property) which secured debt is incurred for the purpose of financing all or any part of the purchase price thereof or construction or improvements thereon; provided, however, that in the case of any such acquisition, construction or improvement, the lien, pledge, security interest or other encumbrance shall not apply to any property theretofore owned by the Company, other than, in the case of any such construction or improvement, any theretofore substantially unimproved real property on which the property or improvement so constructed is located;
(g) any liens, pledges, security interests or other encumbrances (which shall include, without limitation, purchase money mortgages, conditional sale agreements and other title retention agreements and leases in the nature of title retention agreements) on property of the Company in favor of the United States of America or any state thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, or in favor of any other county or political subdivision thereof, or any department, agency or instrumentality of such county or political subdivision, to secure partial progress, installment, advance or other payments pursuant to any contract or statute or to secure any indebtedness or other obligation (or related instrument) incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the property subject to such liens, pledges, security interest or other encumbrances;
(h) any extension, renewal or replacement (or successive extension, renewal or replacement) in whole or in part of any lien or encumbrance referred to in clauses (a) through (g) above, provided, however, that the principal amount of indebtedness secured thereby is not increased and the extension, renewal or replacement shall be limited to all or part of the property which secured the indebtedness so extended, renewed or replaced (plus improvements and construction on such property); or
(i) the lien granted to the Trustee pursuant to Section 907 hereof and any substantially equivalent lien granted to the respective trustees under the indentures for any other debt securities of the Company.
Notwithstanding the foregoing, in no event shall the Company create,
assume, incur or suffer to exist pursuant to the foregoing clauses (a) and
(c)-(i) and any mortgage, lien, pledge, charge or encumbrance on the Capital
Stock of either of the Significant Subsidiaries directly or indirectly owned by
the Company.
Any instrument creating a lien pursuant to the requirements of this
Section shall contain reasonable and customary provisions for the enforcement of
such lien and for the release of, or substitution for, the property subjected to
such lien.
(i) liens for taxes, assessments or governmental charges not delinquent and liens for workers' compensation awards and similar obligations not delinquent and liens for taxes, assessments or governmental charges delinquent but the validity of which is being contested at the time by the Company in good faith by appropriate proceedings;
(ii) any liens securing indebtedness existing in or relating to real estate acquired by the Company for transmission, distribution or right-of-way purposes, or in connection with its usual operations;
(iii) easements or reservations in any property of the Company created for the purpose of roads, rights-of-way, railroads, railroad side tracks, electric lines, pipe lines, sewers, water and gas transmission and distribution mains, conduits, water rights of states, any subdivision thereof or others, building and use restrictions and defects of title to, or leases of, any parts of the property of the Company;
(iv) undetermined liens and charges incidental to current construction, including mechanics', laborers', materialmen's and similar liens not delinquent;
(v) any obligations or duties affecting the property of the Company to any municipality or public authority with respect to any franchise, grant, license, permit or certificate;
(vi) rights reserved to or vested in any municipality or public authority to control or regulate any property of the Company or to use such property in a manner
which does not materially impair the use of such property for the purposes for which it is held by the Company;
(vii) any irregularities or deficiencies of title to any rights- of-way for mains or pipes and/or appurtenances thereto or other improvements thereon and to any real estate used or to be used primarily for right of way purposes; and
(viii) leases made, or leases existing on property acquired, in the ordinary course of business.
(i) the Company would be entitled, pursuant to the provisions of
Section 608, to create, assume, incur or suffer to exist a mortgage, lien,
pledge, charge or encumbrance of any kind to secure indebtedness on the
property to be leased without equally and ratably securing the Securities;
or
(ii) the Company shall, or in any such case the Company covenants that it will, within 120 days of the effective date of any such arrangement (or in the case of clause (a) below, within six months thereafter pursuant to a firm
purchase commitment entered into within such 120 day period), apply an amount not less than the fair value of such property to any one or more of
(a) the optional redemption of Securities issued under the Indenture in accordance with the provisions of Article Four and the terms of such Securities to be so redeemed or the purchase and retirement of Securities as provided pursuant to Article Seven hereof, or
(b) the payment or other retirement of Funded Debt incurred or assumed by the Company which ranks pari passu with the Securities (other than Funded Debt owned by the Company), or
(c) the purchase at not more than the fair value of property by the Company (other than property of the Company involved in such sale).
ARTICLE SEVEN
(a) This Indenture shall upon Company Request cease to be of further effect (except that Sections 304, 305, 306, 404, 503 (as to notice of redemption), 602, 603, 907 and 914 and this Article Seven shall survive), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(i) either
(1) all Securities theretofore authenticated and delivered (other than (A) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (B) Securities deemed to have been paid in accordance with Section 702(a)) have been delivered to the Trustee for cancellation; or
(2) all Securities not theretofore delivered to the Trustee for cancellation (other than Securities described in clause (1)(A) above) shall be deemed to have been paid in accordance with Section 702(a);
(ii) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
(b) In the event there shall be Securities of two or more series Outstanding hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of all series as to which it is Trustee and if the other conditions thereto as required herein are met. In the event there shall be two or more Trustees hereunder, then the effectiveness of each such instrument from each Trustee hereunder shall be conditioned upon receipt of such instruments from each other Trustee hereunder.
(c) Upon satisfaction and discharge of this Indenture as provided in this Section 701, the Trustee shall assign, transfer and turn over to the Company, subject to the lien provided by Section 907, any and all money, securities and other property then held by the Trustee for the benefit of the Holders of the Securities other than money and Eligible Obligations held by the Trustee pursuant to Section 703.
(a) On and after the date the Company shall have fulfilled the
conditions of Section 702(c), it shall be deemed to have paid and discharged the
entire Indebtedness represented by any Security or Securities of any series or
Tranche, or any portion of the principal amount thereof, and satisfied its
obligations under this Indenture with respect thereto (hereinafter, "Legal
Defeasance"). Such Securities shall thereafter be deemed to be "Outstanding"
solely for the purposes of Section 703 hereof and the following provisions of
this Indenture shall survive with respect thereto: (i) the rights of Holders of
such Securities to receive, solely from the trust fund described in Section
702(c), payments in respect of the principal of, premium, if any, and interest
on such Securities when such payments are due, or on the redemption date, as the
case may be, and (ii) the obligations of the Company and the Trustee with
respect to such Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907 and 914 and this Article Seven. The Company may
elect to effect a Legal Defeasance under this Section 702(a) notwithstanding the
prior election to effect a Covenant Defeasance under Section 702(b) with respect
to Securities or portions thereof of the same series or Tranche.
(b) The Company shall be released from its obligations under the covenants contained in Sections 604 (except with respect to maintaining its corporate existence), 605, 606, 608 and 609 and Article Eleven with respect to any Security or Securities of any series or Tranche or any portion of the principal amount thereof (and under any covenants inserted pursuant to Section 301(u) hereof, in any supplemental indenture,
Board Resolution or Officers' Certificate establishing such Security), on and after the date the conditions in Section 702(c) are satisfied (hereinafter, "Covenant Defeasance"). Such Securities or portions thereof shall thereafter be deemed not "Outstanding" for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "Outstanding" for all other purposes hereunder. In the event of a Covenant Defeasance, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 801(c) with respect to such Securities or portions thereof, but, except as specified above, the remainder of this Indenture and such Securities or portions thereof shall continue to be in full force and effect.
(c) The following shall be the conditions to any defeasance under this
Section 702:
or state law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or relief of debtors;
(ii) if such deposit shall have been made prior to the Maturity of such Securities, the Company shall have delivered to the Trustee a Company Order stating that the money and Eligible Obligations deposited with the Trustee in accordance with this Section shall be held by the Trustee, in trust, as provided in Section 703;
(iii) if Eligible Obligations shall have been deposited with the Trustee, the Company shall have delivered to the Trustee an opinion of an independent public accountant of nationally recognized standing, selected by the Company, to the effect that the requirements set forth in clause (i) above have been satisfied;
(iv) the Company shall have delivered to the Trustee an Opinion of Counsel in the form described in Section 702(d); and
(v) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein relating to either the Legal Defeasance under Section 702(a) or the Covenant Defeasance under Section 702(b), as the case may be, have been complied with.
(d) (i) In the case of Legal Defeasance under Section 702(a), the Opinion of Counsel referred to in Section 702(c) shall be in a form reasonably satisfactory to the Trustee and shall be (x) accompanied by a ruling of the Internal Revenue Service issued to the Company, or (y) based on a change in law or regulation occurring after the date hereof, to the effect that the Holders will not realize income, gain or loss for Federal income tax purposes as a result of such Legal Defeasance but will realize income, gain or loss on the Securities, including payments of interest thereon, in the same amounts and in the same manner and at the same time as would have been the case if such Legal Defeasance had not occurred; and
(ii) In the case of Covenant Defeasance under Section
702(b), the Opinion of Counsel referred to in Section 702(c) shall be
in a form reasonably satisfactory to the Trustee and to the effect
that the Holders will not realize income, gain or loss for Federal
income tax purposes as a result of such Covenant Defeasance but will
realize income, gain or loss on the Securities, including payments of
interest thereon, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred.
(e) In the event that the Company effects a Legal Defeasance, upon receipt by the Trustee of money or Eligible Obligations, or both, in accordance with Section 702(c), together with the documents required by such paragraph, the Trustee shall, upon receipt of a Company Request, acknowledge in writing that the Security or Securities or portions thereof with respect to which such deposit was made are deemed to have been paid for all purposes of this Indenture and that the entire indebtedness of the Company in respect thereof is deemed to have been satisfied and discharged.
(f) If payment of less than all of the Securities of any series, or any Tranche thereof, is to be provided for in the manner and with the effect provided in this Section, the Security Registrar shall select such Securities, or portions of principal amount thereof in the manner specified by Section 403 for selection for redemption of less than all the Securities of a series or Tranche.
(g) In the event that Securities which shall be deemed to have been paid as a result of a Legal Defeasance (or with respect to which a Covenant Defeasance has been effected) do not mature and are not to be redeemed within the 60-day period commencing with the date of the deposit with the Trustee of moneys or Eligible Obligations, the Company shall, as promptly as practicable, give a notice, in the same manner as a notice of redemption with respect to such Securities, to the Holders of such Securities to the effect that such deposit has been made and the effect thereof.
(h) The Company shall pay, and shall indemnify the Trustee and each
Holder of Securities which are deemed to have been paid as provided in this
Section against any tax, fee or other charge imposed on or assessed against the
Eligible Obligations deposited with the Trustee or the principal or interest
received by the Trustee in respect of such Eligible Obligations.
(i) Anything herein to the contrary notwithstanding, if, at any time
after a Legal Defeasance or a Covenant Defeasance is effected pursuant to this
Section (without regard to the provisions of this paragraph (i)), the Trustee
shall be required to return the money or Eligible Obligations, or combination
thereof, deposited with it to the Company or its representative under any
applicable Federal or State bankruptcy, insolvency or other similar law, the
indebtedness of the Company in respect of such Security shall thereupon be
deemed retroactively not to have been satisfied and discharged, as aforesaid,
and to remain Outstanding, or, as the case may be, the obligations under the
above-mentioned covenants in respect of such Security shall thereupon be deemed
retroactively not to have been released.
ARTICLE EIGHT
"Event of Default", wherever used herein with respect to Securities of any series, means any one of the following events:
(a) failure to pay any interest on any Security of such series within 30 days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any Security of such series within three Business Days after it becomes due; or
(c) failure to perform or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in the performance of which or breach of
which is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(d) the entry by a court having jurisdiction in the premises of (1) a decree or order for relief in respect of the Company or a Significant Subsidiary in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (2) a decree or order adjudging the Company or a Significant Subsidiary a bankrupt or insolvent, or approving as properly filed a petition by one or more Persons other than the Company or a Significant Subsidiary seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or a Significant Subsidiary under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official for the Company or a Significant Subsidiary or for any substantial part of its respective property, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief or any such other decree or order shall have remained unstayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company or a Significant Subsidiary of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or a Significant Subsidiary in a case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the consent by it to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or a Significant Subsidiary or of any substantial part of its respective property, or the making by the Company or a Significant Subsidiary of an assignment for the benefit of creditors, or the admission by the Company or a Significant Subsidiary in writing of its inability to pay its debts generally as they become due, or the authorization of such action by the Board of Directors of the Company or of a Significant Subsidiary; or
(f) a default under any bond, debenture, note or other evidence of indebtedness by the Company (including a default with respect to Securities of any series) or by a Significant
Subsidiary or a default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness by the Company (including this Indenture) or by a Significant Subsidiary, in each case aggregating in excess of $10,000,000, whether such indebtedness now exists or shall hereafter be created, which default shall constitute a failure to pay any portion of the principal of such indebtedness when due and payable after the expiration of any applicable grace period with respect thereto or shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, if (1) there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities of any series a written notice specifying such default and requiring the Company to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and (2) within a period of 10 days after said notice is given to the Company, such indebtedness is not discharged or such acceleration is not rescinded or annulled; or
(g) any other Event of Default specified with respect to Securities of such series.
If an Event of Default shall have occurred and be continuing with respect to Securities of any series at the time Outstanding, then in every such case the Trustee or the Holders of not less than 33% in principal amount of the Outstanding Securities of such series may declare the principal amount (or, if any of the Securities of such series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof as contemplated by Section 301) of all of the Securities of such series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon receipt by the Company of such notice of such declaration such principal amount (or specified amount) shall become immediately due and payable; provided, however, that if an Event of Default shall have occurred and be continuing with respect to more than one series of Securities, the Trustee or the Holders of not less than 33% in aggregate principal amount of the Outstanding Securities of all such series, considered as one class, may make such declaration of acceleration, and not the Holders of the Securities of any one of such series.
At any time after such a declaration of acceleration with respect to Securities of any series shall have been made and before a judgment or decree for payment of the money due shall have been obtained by the Trustee as hereinafter in this Article provided, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed to have been waived, and such declaration and its consequences shall, without further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum sufficient to pay
(1) all overdue interest on all Securities of any such series;
(2) the principal of and premium, if any, on any Securities of such series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities;
(3) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to Securities of such series, other than the non-payment of the principal of Securities of such series which shall have become due solely by such declaration of acceleration, shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any right consequent thereon.
If any Event of Default described in clause (a) or (b) of Section 801 shall have occurred and be continuing, the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of the Securities of the series with respect to which such Event of Default shall have occurred, the whole amount then due and payable on such Securities for principal and premium, if any, and interest, if any, and, to the extent required by such Securities and permitted by law, interest on premium, if any, and on any overdue principal and interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series shall have occurred and be continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal, premium if any, and interest, if any, owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for amounts due to the Trustee under Section 907) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amounts due to it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery or judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or premium, if any, or interest, if any, upon presentation of the Securities in respect of which or for the benefit of which such money shall have been collected and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 907;
Second: To the payment of the amounts then due and unpaid upon the Securities for principal of and premium, if any, and interest, if any, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, and interest, if any, respectively; and
Third: To the Company.
No Holder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;
(b) the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of
all series in respect of which an Event of Default shall have occurred and be continuing, considered as one class, shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such proceeding; and
(e) no direction inconsistent with such written request shall have been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Securities of a series in respect of which an Event of Default shall have occurred and be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and premium, if any, and (subject to Section 307) interest, if any, on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, and Trustee and such Holder shall be restored severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though no such proceeding had been instituted.
Except as otherwise provided in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
If an Event of Default shall have occurred and be continuing in respect of a series of Securities, the Holders of a majority in principal amount of the Outstanding Securities of such series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided, however, that if an Event of Default shall have occurred and be continuing with respect to more than one series of Securities, the Holders of a majority in aggregate principal amount of the Outstanding Securities of all such series, considered as one class, shall have the right to make such direction, and not the Holders of the Securities of any one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule of law or with this Indenture, and could not involve the Trustee in personal liability in circumstances where indemnity would not, in the Trustee's sole discretion, be adequate;
(b) the Trustee shall not have determined that the action so directed would be unjustly prejudicial to the Holders not taking part in such direction; and
(c) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section 1202 cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any and all Events of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
The Company and the Trustee agree, and each Holder by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the Outstanding Securities of all series in respect of which such suit may be brought, considered as one class, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or premium, if any, or interest, if any, on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date). This Section 814 shall be in lieu of Section 315(e) of the Trust Indenture Act and such Section 315(e) is hereby expressly excluded from this Indenture as permitted by the Trust Indenture Act.
ARTICLE NINE
(a) Except during the continuance of an Event of Default with respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to Securities of such series, such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with respect to Securities of such series, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any series shall have occurred and be continuing, the Trustee shall exercise, with respect to Securities of such series, such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own wilful misconduct, except that
(1) this subsection shall not be construed to limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities of any one or more series, as provided herein, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 1003(c), notice of any default hereunder known to the Trustee, unless
such default shall have been cured and waived; provided, however, that, except
in the case of a default in the payment of the principal of or premium, if any,
or interest, if any, on any Security of such series or in the payment of any
sinking fund instalment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that in the case of any default of the character
specified in Section 801(c) with respect to Securities of such series, no such
notice to Holders shall be given until at least 75 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Subject to the provisions of Section 901:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, or as otherwise expressly provided herein, and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any Holder pursuant to this Indenture, unless such Holder shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; and
(h) except as otherwise provided in Section 801(d), the Trustee shall not be charged with knowledge of any Event of Default with respect to the Securities of any series for
which it is acting as Trustee unless either (1) a Responsible Officer of the Trustee assigned to the Corporate Trust Department of the Trustee (or any successor division or department of the Trustee) shall have actual knowledge of the Event of Default or (2) written notice of such Event of Default shall have been given to the Trustee by the Company, any other obligor on such Securities or by any Holder of such Securities.
The recitals contained herein and in the Securities (except the Trustee's certificates of authentication) shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities of the proceeds thereof, nor shall it be responsible for any statement in the registration statement or prospectus for the Securities under the Securities Act of 1933, as amended, or the determination as to which beneficial owners are entitled to receive any notices hereunder.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 908 and 913, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Money held by the Trustee in trust hereunder need not be segregated from other funds, except to the extent required by law. Neither the Trustee nor the Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
The Company shall
(a) pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee and its officers, directors, employees and agents and hold each of them harmless from and against, any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on the part of such indemnified party, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defense against any claim or liability in connection with the exercise or performance of any of such indemnified party's powers or duties hereunder.
As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee as such other than property and funds held in trust under Section 703 except as otherwise provided in Section 703, and other than the property or funds deposited with the Trustee pursuant to Section 701. Anything to the contrary notwithstanding, the obligations of the Company under this Section 907 shall survive payment in full of the Securities and discharge of this Indenture.
(a) If the Trustee shall have or acquire any conflicting interest, as defined in this Section, with respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest and if the default (as defined in Section 908(d), to which such conflicting interest relates has not been cured or duly waived or otherwise eliminated before the end of such 90-day period, either eliminate such conflicting interest or resign with respect to the Securities of such series in the manner and with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section with respect to the Securities of any series, the Trustee shall, within 10 days after the expiration of such 90- day period, transmit, in the manner and to the extent provided in Section 1003(c), to all Holders of Securities of such series notice of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series if the Securities of such series are in default (as such term is defined in Section 801, but exclusive of any period of grace or requirement of notice); and
(1) the Trustee is trustee under this Indenture with respect to the Outstanding Securities of any series other than such series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company are outstanding, unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities issued under this Indenture; provided, however, that there shall be excluded from the operation of this paragraph of this Indenture Outstanding Securities of any series other than such series or any other indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company are outstanding, if
(A) this Indenture and such other indenture or indentures are wholly unsecured and rank equally and such other indenture or indentures are hereafter qualified under the Trust Indenture Act, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(c) of the Trust Indenture Act that differences exist between the provisions of this Indenture with respect to Securities of such series and one or more other series or the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of such series and such other series or under such other indenture or indentures, or
(B) the Company shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to the Securities of such series and such other series or such other indenture or indentures is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to the Securities of such series and such other series or under such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is
a director, officer, partner, employee, appointee or representative of
the Company, or of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of underwriting,
except that (A) one individual may be a director and/or an executive
officer, of the Trustee and a director and/or an executive officer of
the Company but may not be at the same time an executive officer of
both the Trustee and the Company; (B) if and so long as the number of
directors of the Trustee in office is more than nine, one additional
individual may be a director and/or an executive officer of the
Trustee and a director of the Company; and (C) the Trustee may be
designated by the Company or by any underwriter for the Company to act
in the capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any other similar
capacity, or, subject to the provisions of paragraph (1) of this
Section 908(c) to act as trustee, whether under an indenture or
otherwise;
(5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director, partner or executive officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this subsection defined), (A) 5% or more of the voting securities, or 10% or more of any other class of security, of the Company not including the Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee or (B) 10% or more of any class of security of any underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this subsection defined), 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default (as hereinafter in this subsection defined), 10% or more of any class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company; or
(9) the Trustee owns, on the date of default upon the Securities of such series (as such term is defined in Section 801, but exclusive of any period of grace or requirement of notice) or any anniversary of such default while such default upon the Securities of such series remains outstanding, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 25% or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection. As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition, to the extent that such securities included in such estate do not exceed 25% of such voting securities or 25% of any such class of security. Promptly after the dates of any such default upon the Securities of such series and annually in each succeeding year that the Securities of such series remain in default the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such dates. If the Company shall fail to make payment in full of the principal of or premium, if any, or interest, if any, on any of the Securities when and as the same becomes due and payable, and such failure shall continue for 30 days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above-mentioned capacities as of the date of the expiration of such 30-day period, and after such date, notwithstanding the foregoing provisions of this paragraph, all such securities so held by the Trustee, with sole or joint control over such securities vested
in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraph (1),
(3), (4) (5) or (6) of Section 913(b) hereof, the Trustee shall be or
shall become a creditor of the Company.
The specification of percentages in paragraphs (5) to (9), inclusive, of this subsection shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection only, (a) the terms "security" and "securities" shall include only such securities as are generally known as corporate securities, but shall not include any note or other evidence of indebtedness issued to evidence an obligation to repay moneys lent to a person by one or more banks, trust companies or banking firms, or any certificate of interest or participation in any such note or evidence of indebtedness; (b) an obligation shall be deemed to be "in default" when a default in payment of principal shall have continued for 30 days or more and shall not have been cured; and (c) the Trustee shall not be deemed to be the owner or holder of (1) any security which it holds as collateral security, as trustee or otherwise, for an obligation which is not in default as defined in clause (b) above, (2) any security which it holds as collateral security under this Indenture, irrespective of any default hereunder or (3) any security which it holds as agent for collection, or as custodian, escrow agent or depositary, or in any similar representative capacity.
(d) For the purpose of this Section:
(1) the term "underwriter", when used with reference to the Company means every person who, within one year prior to the time as of which the determination is made, has purchased from the Company with a view to, or has offered or sold for the Company in connection with, the distribution of any security of the Company outstanding at such time, or has participated or has had a direct or indirect participation in any such undertaking, or has participated or has had a participation in the direct or indirect underwriting of any such undertaking, but such term shall not include a person whose interest was limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors' or sellers' commission;
(2) the term "director" means any director of a corporation or any individual performing similar functions with respect to any organization, whether incorporated or unincorporated;
(3) the term "person" means an individual, a corporation, a partnership, an association, a joint-stock company, a trust, an unincorporated organization or a government or political subdivision thereof; and as used in this paragraph, the term "trust" shall include only a trust where the interest or interests of the beneficiary or beneficiaries are evidenced by a security;
(4) the term "voting security" means any security presently entitling the owner or holder thereof to vote in the direction or management of the affairs of a person, or any security issued under or pursuant to any trust, agreement or arrangement whereby a trustee or trustees or agent or agents for the owner or holder of such security are presently entitled to vote in the direction or management of the affairs of a person;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "executive officer" means the president, every vice president, every trust officer, the cashier, the secretary and the treasurer of a corporation, and any individual customarily performing similar functions with respect to any organization whether incorporated or unincorporated, but shall not include the chairman of the board of directors.
(e) Except in the case of a default in the payment of the principal of
or interest on any Security, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section 908 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under the Indenture may be cured or waived during a reasonable
period and under the procedures described in such application, and (ii) a stay
of the Trustee's duty to resign will not be inconsistent with the interest of
the Holders. The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise.
(f) The percentages of voting securities and other securities specified in this Section shall be calculated in accordance with the following provisions:
(1) a specified percentage of the voting securities of the Trustee, the Company or any other
person referred to in this Section (each of whom is referred to as a "person" in this paragraph) means such amount of the outstanding voting securities of such person as entitles the holder or holders thereof to cast such specified percentage of the aggregate votes which the holders of all the outstanding voting securities of such person are entitled to cast in the direction or management of the affairs of such person;
(2) a specified percentage of a class of securities of a person means such percentage of the aggregate amount of securities of the class outstanding.
(3) the term "amount", when used in regard to securities, means the principal amount if relating to evidences of indebtedness, the number of shares if relating to capital shares and the number of units if relating to any other kind of security;
(4) the term "outstanding", as used in this Section, means issued and not held by or for the account of the issuer; the following securities shall not be deemed outstanding within the meaning of this definition:
(A) securities of an issuer held in a sinking fund relating to securities of the issuer of the same class;
(B) securities of an issuer held in a sinking fund relating to another class of securities of the issuer, if the obligation evidenced by such other class of securities is not in default as to principal or interest or otherwise;
(C) securities pledged by the issuer thereof as security for an obligation of the issuer not in default as to principal or interest or otherwise; and
(D) securities held in escrow if placed in escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed outstanding if any person other than the issuer is entitled to exercise the voting rights thereof; and
(5) a security shall be deemed to be of the same class as another security if both securities confer upon the holder or holders thereof substantially the same rights and privileges; provided, however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest rates or maturity dates of various series thereof shall not be deemed sufficient to constitute such series different classes; and provided, further, that, in the case of unsecured evidences of indebtedness, differences in the interest rates or maturity dates thereof shall not be deemed sufficient to constitute them securities of different classes, whether or not they are issued under a single indenture.
There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal or State authority and qualified and eligible under this Article. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of such supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. No obligor upon the Securities or person directly or indirectly controlling, controlled by, or under common control with such obligor shall serve as Trustee. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptances by a successor Trustee required by Section 911 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Company may at any time by a Board Resolution remove the Trustee with respect to the Securities of any or all series.
(d) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Trustee and to the Company.
(e) If at any time:
(1) the Trustee shall fail to comply with Section 908(a) after written request therefor by any Holder who has been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section 909 and shall fail to resign after written request therefor by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, subject to Section 814, any Holder who has been a bona fide Holder for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(f) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 911. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 911, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, subject to Section 814, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.
(g) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
(a) In case of the appointment hereunder of a successor Trustee with respect to the Securities of all series, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of all sums owed to it, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trust of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee, upon payment of all sums owed to it, shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any instrument which fully vests in and confirm to such successor Trustee all such rights, powers and trusts referred to in subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties thereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
(a) Subject to subsection (b) of this Section, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company within three months prior to a default, as defined in subsection (c) of this Section, or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in a special account for the benefit of the Trustee individually, the Holders and the holders of other indenture securities, as defined in subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest, effected after the beginning of such three months' period and valid as against the Company and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in clause (2) of this paragraph, or from the exercise of any right of set-off which the Trustee could have exercised if a petition in bankruptcy had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as such creditor, either as security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of such three months' period, or an amount equal to the proceeds of any such property, if disposed of, subject, however, to the rights, if any, of the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee,
(1) to retain for its own account (A) payments made on account of any such claim by any Person (other that the Company) who is liable thereon, and (B) the proceeds of the bona fide sale of any such claim by the Trustee to a third Person and (C) distributions made in cash, securities or other property in respect of claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State laws;
(2) to realize, for its own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such three months' period;
(3) to realize, for its own account, but only to the extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was
created after the beginning of such three months' period and such property was received as security therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving that at the time such property was so received the Trustee had no reasonable cause to believe that a default, as defined in subsection (c) of this Section, would occur within three months; or
(4) to receive payment on any claim referred to in clause (2) or (3) of this paragraph, against the release of any property held as security for such claim as provided in such clause (2) or (3), as the case may be, to the extent of the fair value of such property.
For the purposes of clauses (2), (3) and (4) of this paragraph, property substituted after the beginning of such three months' period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in such special account and the proceeds thereof shall be apportioned among the Trustee, the Holders and the holders of other indenture securities in such manner that the Trustee, the Holders and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Company of the funds and property in such special account and before crediting to the respective claims of the Trustee and the Holders and the holders of other indenture securities dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this paragraph, with respect to any claim, the term "dividends" shall include any distribution with respect to such claim, in bankruptcy or receivership or proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law, whether such distribution is made in cash, securities or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction (1) to apportion among the Trustee, the Holders and the holders of other indenture securities, in accordance with the provisions of this paragraph, the funds and property held in such special account and proceeds thereof, or (2) in lieu of such apportionment, in whole or in part, to give to the provisions of this paragraph due consideration in determining the fairness of the distributions to be made to the Trustee and the Holders and the holders of other indenture securities with respect to their respective claims, in which event it shall not be necessary to liquidate or to appraise the value of any securities or other property held in such special account or as security for any such claim, or to make a specific allocation of such distributions as between the secured and unsecured portions of such claims, or otherwise to apply to the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such three months' period shall be subject to the provisions of this subsection as though such resignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning of such three months' period, it shall be subject to the provisions of this subsection if and only if the following conditions exist:
(1) the receipt of property or reduction of claim, which would have given rise to the obligation to account, if such Trustee had continued as Trustee, occurred after the beginning of such three months' period; and
(2) such receipt of property or reduction of claim occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of competent jurisdiction or by this Indenture, for the purpose of preserving any property which shall at any time be subject to the lien of this Indenture or of discharging tax liens or other prior liens of encumbrances thereon, if notice of such advances and of the circumstances surrounding the making thereof is given to the Holders at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises rented; or an indebtedness created as a result of goods or securities sold in a cash transaction, as defined in subsection (c) of this Section;
(5) the ownership of stock or of other securities of a corporation organized under the provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange, acceptances or obligations which fall within the classification of self-liquidating paper, as defined in subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of the principal of or interest on any of the Securities or upon the other indenture securities when and as such principal or interest becomes due and payable;
(2) the term "other indenture securities" means securities upon which the Company is an obligor outstanding under any other indenture (A) under which the Trustee is also trustee, (B) which contains provisions substantially similar to the provisions of this Section and (C) under which a default exists at the time of the apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligations;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United States Code.
The Trustee may appoint an Authenticating Agent or Agents with respect to the Securities of one or more series, or any Tranche thereof, which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series or Tranche issued upon original issuance, exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State or territory thereof or the District of Columbia or the Commonwealth of Puerto Rico, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $25,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company. Any successor Authenticating Agent upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
The provisions of Sections 308, 904 and 905 shall be applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or more series, or any Tranche thereof, shall be made pursuant to this Section, the Securities of such series or Tranche may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
If all the Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested by the Company in writing (which writing need not comply with Section 102 and need not be accompanied by an Opinion of Counsel), shall appoint, in accordance with this Section and in accordance with such procedures as shall be acceptable to the Trustee, an Authenticating Agent (which, if so requested by the Company, may be an Affiliate of the Company) having an office in a Place of Payment designated by the Company with respect to such series of Securities.
ARTICLE TEN
The Company shall furnish or cause to be furnished to the Trustee
(a) semiannually, not later than _____________ 1 and _________ 1, in each year, a list, in such form as the Trustee may reasonably require, containing all the information in the possession or control of the Company, or any of its Paying Agents other than the Trustee, as to the names and addresses of the Holders as of the preceding ____________ 15 or ___________ 15, as the case may be, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that, so long as the Trustee is the Security Registrar, no such list shall be required to be furnished.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders (1) contained in the most recent list furnished to the Trustee as provided in Section 1001 and (2) received by the Trustee in any other capacity. The Trustee may (1) destroy any list furnished to it as provided in Section 1001 upon receipt of a new list so furnished, (2) destroy any information received by it as Paying Agent (if so acting) hereunder upon delivering to itself as Trustee, not earlier than ___________ 15 or __________ 15, a list containing the names and addresses of the Holders obtained from such information since the delivery of the next previous list, if
any, and (3) destroy any list delivered to itself as Trustee which was compiled from information received by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so delivered.
(b) If three or more Holders (herein referred to as "applicants") apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either
(1) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 1002(a), or
(2) inform such applicants as to the approximate number of Holders whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 1002(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 1002(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee by such applicants of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender by such applicants as aforesaid; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, shall be deemed to have agreed with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 1002(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 1002(b).
(a) Within 60 days after May 15 of each year commencing with the year 1997, the Trustee shall transmit by mail to the Holders, as provided in subsection (c) of this Section, a brief report dated as of such May 15 with respect to the following (but if no event has occurred within such period, no report need be transmitted):
(1) any change in its eligibility under Section 909 and its qualifications under Section 908;
(2) the creation of or any material change to a relationship specified in paragraphs (1) through (10) of Section 908(c);
(3) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than 1/2 of 1% of the principal amount of the Securities Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other indebtedness owing by the Company (or by any other obligor on the Securities) to the Trustee in its individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor, except an indebtedness based upon a creditor relationship arising in any manner described in Section 913(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of its duties hereunder which it has not previously reported and which in its opinion materially affects the Securities or the Securities of any series, except action in respect of a default, notice of which has been or is to be withheld by the Trustee in accordance with Section 902.
(b) The Trustee shall transmit to the Holders, as provided in subsection (c) of this Section, a brief report with respect to the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) since the date of the last report transmitted pursuant to subsection (a) of this Section (or if no such report has yet been so transmitted, since the date of execution of this instrument) for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on property or funds held or collected by it as Trustee and which it has not previously reported pursuant to this subsection, except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining unpaid at any time aggregate 10% or less of the principal amount of the Securities Outstanding at such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail,
(1) to all Holders, as their names and addresses appear in the Security Register; and
(2) except in the case of reports pursuant to subsection (b) of this Section, to each Holder whose name and address is preserved at the time by the Trustee, as provided in Section 1002(a).
(d) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange.
The Company shall:
(a) file with the Trustee, within 45 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules and regulation prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(c) transmit, within 30 days after the filing thereof with the Trustee, to the Holders, in the manner and to the extent provided in Section 1003(c) with respect to reports pursuant to Section 1003(a), such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
ARTICLE ELEVEN
The Company shall not consolidate with or merge into any other Corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless
(a) the Corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and premium, if any, and interest, if any, on all Outstanding Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction and treating any indebtedness for borrowed money which becomes an obligation of the Company as a result of such transaction as having been incurred by the Company at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(c) the Company, the Corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such indenture supplemental hereto complies with this Article and that all conditions precedent herein provided for relating to such transactions have been complied with.
Upon any consolidation by the Company with or merger by the Company into any other Corporation or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 1101, the successor Corporation formed by such consolidation or into which the Company is merged or the Person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities,
or any Tranche thereof (and if such covenants are to be for the benefit of less than all Securities, stating that such covenants are expressly being included solely for the benefit of such series or Tranche) or to surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to all or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add any new provision to this Indenture; provided, however, that if such change, elimination or addition shall materially and adversely affect the interests of the Holders of Securities of any series or Tranche, such change, elimination or addition shall become effective with respect to such series or Tranche only when no Security of such series or Tranche remains Outstanding; or
(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any series or Tranche as contemplated by Sections 201 and 301; or
(g) to evidence and provide for the acceptance of appointment hereunder by a separate or successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 911(b); or
(h) to provide for the procedures required to permit the Company to utilize, at its option, a non-certificated system registration for all, or any series or Tranche of, the Securities; or
(i) to change any place or places where (1) the principal of and premium, if any, and interest, if any, on all or any series of Securities, or any Tranche thereof, shall be payable, (2) all or any series of Securities, or any Tranche thereof, may be surrendered for registration of transfer, (3) all or any series of Securities, or any Tranche thereof, may be surrendered for exchange and (4) notices and demands to or upon the Company in respect of all or any series of Securities, or any Tranche thereof, and this Indenture may be served; provided, however, that any such place is located in New York, New York, Birmingham, Alabama, Chicago, Illinois, Atlanta, Georgia, Jacksonville, Florida, Charlotte, North Carolina or Los Angeles, California or in any other city located in the United States
of America which has a population of at least 1,000,000 inhabitants; or
(j) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such other provisions shall not adversely affect the interests of the Holders of Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust Indenture Act shall be amended at any time or times after the date of the execution and delivery of this Indenture and
(x) if any such amendment shall require one or more changes to any provisions hereof or the incorporation herein of any additional provisions, or shall by operation of law be deemed to effect such changes or incorporate such provisions, this Indenture shall be deemed to have been amended so as to conform to such amendment to the Trust Indenture Act, and the Company and the Trustee may, without the consent of any Holders, enter into an indenture supplemental hereto to effect or evidence such changes or additional provisions; or
(y) if any such amendment shall permit one or more changes to, or the elimination of, any provisions hereof which, at the date of the execution and delivery hereof, are required by the Trust Indenture Act to be contained herein, this Indenture shall be deemed to have been amended to effect such changes or elimination, and the Company and the Trustee may, without the consent of any Holders, enter into an indenture supplemental hereto to effect such changes or elimination; or
(z) if, by reason of any such amendment, it shall be no longer necessary for this Indenture to contain one or more provisions which, at the date of the execution and delivery hereof, are required by the Trust Indenture Act to be contained herein, the Company and the Trustee may, without the consent of any Holders, enter into an indenture supplemental hereto to effect the elimination of such provisions.
With the consent of the Holders of not less than a majority in aggregate principal amount of the Securities of all series then Outstanding under this Indenture, considered as one class, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture; provided, however, that if there shall be Securities of more than one series Outstanding hereunder and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such series, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all series so directly affected, considered as one class, shall be required; and provided, further, that if the Securities of any series shall have been issued in more than one Tranche and if the proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such Tranches, then the consent only of the Holders of a majority in aggregate principal amount of the Outstanding Securities of all Tranches so directly affected, considered as one class, shall be required; and provided, further, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of each series or Tranche so directly affected,
(a) change the Stated Maturity of the principal of, or any installment
of principal or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon (or the amount of any installment of
interest thereon) or any premium payable upon the redemption thereof, or change
the method of calculating the rate of interest thereon, or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 802, or the coin or currency (or other property) in which, any Security
or any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or
(b) reduce the percentage in principal amount of the Outstanding Security of such series or Tranche, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with any provision of this Indenture or of any default hereunder and its consequences, or reduce the requirements of Section 1304 for quorum or voting, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813, except to increase the percentages in principal amount referred to
in this Section or such other Sections or to provide that other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder with respect to changes
in the references to "the Trustee" and concomitant changes in this Section, or
the deletion
of this proviso, in accordance with the requirements of Sections 911(b) and 1201(g).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or of one or more Tranches thereof, or which modifies the rights of the Holders of Securities of such series or Tranches with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 901) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties, immunities or liabilities under this Indenture or otherwise.
Upon the execution of any supplemental indenture under this Article this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. Any supplemental indenture permitted by this Article may restate this Indenture in its entirety, and, upon the execution and delivery thereof, any such restatement shall supersede this Indenture as theretofore in effect for all purposes.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Securities of any series, or any Tranche thereof, authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series, or any Tranche thereof, so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series or Tranche.
If the terms of any particular series of Securities shall have been established in a Board Resolution or an Officers' Certificate pursuant to a Board Resolution as contemplated by Section 301, and not in an indenture supplemental hereto, additions to, changes in or the elimination of any of such terms may be effected by means of a supplemental Board Resolution or Officers' Certificate, as the case may be, delivered to, and accepted by, the Trustee; provided, however, that such supplemental Board Resolution or Officers' Certificate shall not be accepted by the Trustee or otherwise be effective unless all conditions set forth in this Indenture which would be required to be satisfied if such additions, changes or elimination were contained in a supplemental indenture shall have been appropriately satisfied. Upon the acceptance thereof by the Trustee, any such supplemental Board Resolution or Officers' Certificate shall be deemed to be a "supplemental indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
A meeting of Holders of Securities of one or more, or all, series, or any Tranche or Tranches thereof, may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series or Tranches.
(a) The Trustee may at any time call a meeting of Holders of Securities of one or more, or all, series, or any Tranche or Tranches thereof, for any purpose specified in Section 1301, to be held at such time and at such place in the Borough of Manhattan, The City of New York, as the Trustee shall determine, or, with the approval of the Company, at any other place. Notice of every such meeting setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of the Holders of Securities of one or more, or all, series, or any Tranche or Tranches thereof, by the Company or by the Holders of 33% in aggregate principal amount of all such series and Tranches, considered as one class, for any purpose specified in Section 1301, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have given the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series and Tranches in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York, or in such other place as shall be determined or approved by the Company, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all, series, or any Tranche or Tranches thereof, shall be valid without notice if the Holders of all Outstanding Securities of such series or Tranche are present in person or by proxy and if representatives of the Company and the Trustee are present, or if notice is waived in writing before or after the meeting by the Holders of all Outstanding Securities of such series or Tranche, or by such of them as are not present at the meeting in person or by proxy, and by the Company and the Trustee.
To be entitled to vote at any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series or Tranches,
or (b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Person entitled
to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
The Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of the series and Tranches with respect to which a meeting shall have been called as hereinbefore provided, considered as one class, shall constitute a quorum for a meeting of Holders of Securities of such series and Tranches; provided, however, that if any action is to be taken at such meeting which this Indenture expressly provides may be taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of such series and Tranches, considered as one class, the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series and Tranches, considered as one class, shall constitute a quorum. In the absence of a quorum within one hour of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series and Tranches, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Except as provided by Section 1305(e), notice of the reconvening of any adjourned meeting shall be given as provided in Section 1302(a) not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in aggregate principal amount of the Outstanding Securities of the series and Tranches with respect to which such meeting shall have been called, considered as one class; provided, however, that, except as so limited, any resolution with respect to any action which this Indenture expressly provides may be taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of such series and Tranches, considered as one class, may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of Securities duly held in accordance with this Section shall be binding on all the Holders of Securities of the series and Tranches with respect to which such meeting shall have been held, whether or not present or represented at the meeting.
(a) Attendance at meetings of Holders of Securities may be in person or by proxy; and, to the extent permitted by law, any such proxy shall remain in effect and be binding upon any future Holder of Securities with respect to which it was given unless and until specifically revoked by the Holder or future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities in regard to proof of the holding of such Securities and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 1302(b), in which case the Company or the Holders of Securities of the series and Tranches calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of all series and Tranches represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote for each $1,000 principal amount of Securities held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of all series and Tranches represented at the meeting considered as one class; and the meeting may be held as so adjourned without further notice.
The vote upon any resolution submitted to any meeting of Holders shall be by written ballots on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities, of the series and Tranches with respect to which the meeting shall have been called, held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports of all votes cast at the meeting. A record of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1302 and, if applicable, Section 1304. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
In lieu of a vote of Holders at a meeting as hereinbefore contemplated by this Article, any request, demand, authorization, direction, notice, consent, waiver or other action may be made, given or taken by Holders by written instruments as provided in Section 104.
Anything in this Article to the contrary notwithstanding, the Company may, but shall not be obliged to, fix a record date for the purpose of determining the Holders of Securities entitled to attend and vote in person or by proxy at a meeting of Holders of Securities held pursuant to this Article or to consent to any modification, alteration or other action. If a record date is fixed, those persons who were Holders of Securities at the close of business of the Trustee on such record
date (or their duly designated proxies), and only those Persons, shall be entitled to attend and vote in person or by proxy at a meeting of Holders of Securities held pursuant to this Article or to consent to such modification, alteration or other action or to revoke any proxy or consent previously given, whether or not such Persons continue to be Holders of Securities after such record date.
ARTICLE FOURTEEN
No recourse shall be had for the payment of the principal of or premium, if any, or interest, if any, on any Securities, or any part thereof, or for any claim based thereon or otherwise in respect thereof, or of the indebtedness represented thereby, or upon any obligation, covenant or agreement under this Indenture, against any incorporator, stockholder, officer or director, as such, past, present or future of the Company or of any predecessor or successor Corporation (either directly or through the Company or a predecessor or successor Corporation), whether by virtue of any constitutional provision, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Securities are solely corporate obligations, and that no personal liability whatsoever shall attach to, or be incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any predecessor or successor Corporation, either directly or indirectly through the Company or any predecessor or successor Corporation, because of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or to be implied herefrom or therefrom, and that any such personal liability is hereby expressly waived and released as a condition of, and as part of the consideration for, the execution of this Indenture and the issuance of the Securities.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
ENERGEN CORPORATION
Title:
ATTEST:
THE BANK OF NEW YORK, as trustee
Title:
ATTEST:
STATE OF _________ )
) SS.:
COUNTY OF ________ )
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On the ____ day of _______________, 19___, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that (s)he is a __________________ of Energen Corporation, one of the
corporations described in and which executed the foregoing instrument; that
(s)he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that (s)he signed his/her name
thereto by like authority.
Notary Public
STATE OF ________ )
) SS.:
COUNTY OF _______ )
|
On the ____ day of _______________, 19___, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that (s)he is a __________________ of The Bank of New York, one of the
corporations described in and which executed the foregoing instrument; that
(s)he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that (s)he signed his/her name
thereto by like authority.
EXHIBIT 5
August 29, 1996
Energen Corporation
2101 Sixth Avenue North
Birmingham, Alabama 35203
Ladies and Gentlemen:
In our capacity as counsel for Energen Corporation, an Alabama corporation ("Energen"), we have examined the Registration Statement on Form S-3 (the "Registration Statement"), in the form as proposed to be filed by Energen on _____________, 1996 with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, relating to up to $250,000,000 of (i) its notes, adebentures or other evidences of unsecured indebtedness (the "Debt Securities") and (ii) its common stock, par value $.01 per share (the "Common Stock"). The Common Stock and the Debt Securities are collectively referred to as the "Offered Securities." The Offered Securities are to be offered by Energen to the public pursuant to the Registration Statement. In this connection, we have examined such records, documents and proceedings as we have deemed relevant and necessary as a basis for the opinions expressed herein.
Upon the basis of the foregoing, we are of the opinion that:
(i) the Debt Securities to be offered under the Registration Statement, to the extent actually issued by Energen pursuant to the Selling Agency Agreement described in the Registration Statement (the "Selling Agency Agreement"), will be duly and validly authorized and issued, will be fully paid and non-assessable Debt Securities of Energen, and will constitute legal, valid and binding obligations of Energen in accordance with their terms;
(ii) the Common Stock to be offered under the Registration Statement, to the extent actually issued by Energen pursuant to the Common Stock Underwriting Agreement described in the Registration Statement (the "Underwriting Agreement"), will be duly and validly authorized and issued and will be fully paid and nonassessable Common Stock of Energen; and
(iii) under the laws of the State of Alabama, no personal liability will attach to the ownership of the Offered Securities of Energen.
We hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. In addition, we hereby consent to the inclusion of the statements made in reference to our firm under the caption "LEGAL OPINIONS" in the Prospectus which is a part of the Registration Statement.
Yours very truly,
/s/ Bradley, Arant, Rose & White |
ENERGEN CORPORATION EXHIBIT 12
Computation of Ratio of Earnings to Fixed Charges
(In Thousands, Except for Ratios)
Nine Months Years Ended September 30,
Ended
June 30, 1996 1995 1994 1993 1992 1991
------------- ------ ------ ------ ------ ------
Earnings, as defined:
Income from continuing operations
before provision for income taxes . . . . $ 34,467 $ 22,989 $ 30,362 $ 21,489 $ 16,069 $ 14,469
Add:
Interest, net of amounts capitalized (1) . . 9,926 11,818 11,345 10,605 10,415 9,867
Dividends on preferred stock of subsidiary . 0 0 0 70 85 85
---------- ---------- ---------- ---------- ---------- ----------
Total earnings, as defined . . . . . . . . . . $ 44,393 $ 34,807 $ 41,707 $ 32,164 $ 26,569 $ 24,421
========== ========== ========== ========== ========== ==========
Fixed charges, as defined:
Interest (1) . . . . . . . . . . . . . . . . $ 9,926 $ 11,818 $ 11,345 $ 10,605 $ 10,476 $ 10,611
Dividends on preferred stock of subsidiary . 0 0 0 70 85 85
---------- ---------- ---------- ---------- ---------- ----------
Total fixed charges, as defined . . . . . . . $ 9,926 $ 11,818 $ 11,345 $ 10,675 $ 10,561 $ 10,696
========== ========== ========== ========== ========== ==========
Ratio of earnings to fixed charges . . . . . . 4.47 2.95 3.68 3.01 2.52 2.28
========== ========== ========== ========== ========== ==========
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(1) Includes amortization of debt and discount expense.
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on Form S-3 of Energen Corporation for the registration of debt securities and common stock of Energen Corporation of our report, which includes an explanatory paragraph with respect to the change in Energen's method of accounting for certain other post retirement benefits effective October 1, 1993, dated October 25, 1995, on our audits of the consolidated financial statements and financial statement schedules of Energen Corporation as of September 30, 1995 and 1994 and for the years ended September 30, 1995, 1994 and 1993. We also consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND, L.L.P.
Birmingham, Alabama
August 27, 1996
STATE OF ALABAMA ) EXHIBIT 24
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
(OMNIBUS SHELF REGISTRATION)
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned Officers and/or Directors of Energen Corporation, whose signatures appear below hereby constitutes and appoints Rex J. Lysinger, Wm. Michael Warren, Jr., and Geoffrey C. Ketcham, and each of them, his (her) true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him (her) and in his (her) name, place and stead, in any and all capacities, to sign a registration statement of Energen Corporation on Form S-3 relating to the offering of up to $250,000,000 aggregate amount of debt and/or equity securities of Energen Corporation, including all amendments to such registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission and with any state securities commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as (s)he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents, or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Dated as of the 20th day of August, 1996.
/s/ STEPHEN D. BAN /s/ JUDY M. MERRITT - ------------------------------ ------------------------------ STEPHEN D. BAN - Director JUDY M. MERRITT - Director /s/ J. MASON DAVIS, JR. /s/ DRAYTON NABERS, JR. - ------------------------------ ------------------------------ J. MASON DAVIS, JR. - Director DRAYTON NABERS, JR. - Director /s/ WALLACE L. LUTHY /s/ GEORGE S. SHIRLEY - ------------------------------ ------------------------------ WALLACE L. LUTHY - Director GEORGE S. SHIRLEY - Director /s/ REX J. LYSINGER /s/ JAMES S.M. FRENCH - ------------------------------ ------------------------------ REX J. LYSINGER - Director, JAMES S.M. FRENCH - Director Chairman of the Board and CEO /s/ WM. MICHAEL WARREN, JR. /s/ G.C. KETCHAM - ------------------------------ ------------------------------ WM. MICHAEL WARREN, JR. G.C. KETCHAM - Executive Vice Director and President and Chief President, Chief Financial Officer Operating Officer and Treasurer |
FORM T-1
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
13-5160382
(I.R.S. employer identification no.)
48 Wall Street, New York, New York 10286
The Bank of New York 10161 Centurion Parkway Towermarc Plaza, 2nd Floor Jacksonville, Florida 32256 Attn: Ms. Sandra Carreker (904) 998-4716
ENERGEN CORPORATION
(Exact name of obligor as specified in its charter)
Alabama 63-0757759 State or other jurisdiction of (IRS employer incorporation or organization identification no.) |
Debt Securities
(Title of the indenture securities)
Furnish the following information as to the trustee--
Name and address of each examining or supervising authority to which it is subject.
Superintendent of Banks of the State of New York
2 Rector Street
New York, N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York
33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, N.Y.
Whether it is authorized to exercise corporate trust powers.
Yes.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None. (See Note on page 4.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a- 29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the Commission's Rules of Practice.
(1) A copy of the Organization Certificate of the Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.)
(4) A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.)
(6) The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration No. 33-44051.)
(7) A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the Trustee of all facts on which to base a responsive answer to Item 2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Jacksonville and the State of Florida, on the 20th day of August, 1996.
THE BANK OF NEW YORK
By: /s/ Sandra Carreker
___________________________
Sandra Carreker, Agent
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EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939, in connection with the proposed issuance of Energen Corporation Debt Securities, The Bank of New York hereby consents that reports of examinations by Federal, State, Territorial or District Authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor.
THE BANK OF NEW YORK
By: /s/ Sandra Carreker
__________________________
Sandra Carreker, Agent
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EXHIBIT 7 TO FORM T-1
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1996, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
in Thousands
ASSETS
- ------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin $ 3,650,068
Interest-bearing balances 738,260
Securities:
Held-to-maturity securities 784,969
Available-for-sale securities 2,033,407
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold 3,699,232
Securities purchased under
agreements to resell 20,000
Loans and lease financing receivables:
Loans and leases,
net of unearned income 27,521,958
LESS: Allowance for loan and
lease losses 586,658
LESS: Allocated transfer
risk reserve 429
Loans and leases, net of unearned
income and allowance and reserve 27,521,958
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Assets held in trading accounts 678,844
Premises and fixed assets (including
capitalized leases) 608,217
Other real estate owned 50,599
Investments in unconsolidated
subsidiaries and associated
companies 235,670
Customers' liability to this bank
on acceptances outstanding 904,948
Intangible assets 450,230
Other assets 1,299,464
----------
Total assets $42,675,866
==========
LIABILITIES
- -----------
Deposits:
In domestic offices $19,223,050
Noninterest-bearing 7,675,758
Interest-bearing 11,547,292
In foreign offices, Edge and
Agreement subsidiaries, and IBFs 11,527,685
Noninterest-bearing 48,502
Interest-bearing 11,479,183
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased 1,498,351
Securities sold under agreements
to repurchase 126,974
Demand notes issued to the
U.S. Treasury 231,865
Trading liabilities 479,390
Other borrowed money:
With original maturity of one year
or less 2,521,578
With original maturity of more
than one year 20,780
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Bank's liability on acceptances
executed and outstanding 905,850
Subordinated notes and debentures 1,020,400
Other liabilities 1,543,657
----------
Total liabilities 39,099,580
==========
EQUITY CAPITAL
- --------------
Common stock 942,284
Surplus 525,666
Undivided profits and capital
reserves 2,124,231
Net unrealized holding gains (losses)
on available-for-sale securities (8,063)
Cumulative foreign currency
translation adjustments (7,832)
----------
Total equity capital 3,576,286
----------
Total liabilities and equity capital $42,675,866
===========
|
I, Robert E. Keilman, Senior Vice President and Comptroller of the above- named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true and correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )